Sustainable Development in International and National Law 9076871841, 9789076871844, 9789089520746

Table of contents :
Sustainable Development in International and National Law; What did the Brundtland Report do to Legal Thinking and Legal Development, and Where can we go From Here? Edited by Prof. Hans Christian Bugge & Dr. Christina Voigt
Acknowledgements
Introduction
Contents
List of Contributors
part i. theoretical perspectives and legal thinking on sustainable development
chapter 1.1. 1987-2007: “Our Common Future” Revisited by Hans Christian Bugge
chapter 1.2. A Fundament and Two Pillars; The Concept of Sustainable Development 20 Years after the Brundtland Report by Gerd Winter
chapter 1.3. Theory for Sustainable Development; Towards or Against? by Staffan Westerlund
chapter 1.4. Sustainability and a New Concept of Liberty by Felix Ekardt
part ii sustainable development in international law
chapter 2.1. Sustainable Development in International Law by Marie-Claire Cordonier Segger
chapter 2.2. Between Process and Substance; Sustainable Development in the Jurisprudence of International Courts and Tribunals by Alan Boyle
chapter 2.3. Development – The Neglected Dimension in the Post-Rio International Law of Sustainable Development by Nico Schrijver
chapter 2.4. The Principle of Common but Differentiated Responsibilities as Contributing to Sustainable Development through Multilateral Environmental Agreements by Tuula Kolari
part iii sustainable development and international trade and investment law
chapter 3.1. Sustainable Development in World Trade Law; A Short History by Markus W. Gehring
chapter 3.2. Any Steps Towards Sustainability in International Investment Agreements? A Study of BITs of Nordic Countries and the US–Chile Free Trade Agreement Concerning the Potential to Conflict with Health and Environmental Measures by Åsa Romson
chapter 3.3. Transparency, Participation and Accountability in International Economic Dispute Settlement; A Sustainable Development Perspective by Nathalie Bernasconi-Osterwalder
chapter 3.4. Corporate Environmental Accountability as a Means for Intragenerational Equity; ‘Hidden’ Environmental Impacts in the North-South Conflict by Katinka Jesse and Marie-José van der Heijden
part iv sustainable development in ec law
chapter 4.1. Sustainable Development in EC Law by Ludwig Krämer
chapter 4.2. Sustainable Development and EU Waste Law by Nicolas de Sadeleer
chapter 4.3. EC Legislation on Public Procurement and Sustainable Development by Ari Ekroos
chapter 4.4. Bioenergy as Integration of the Sustainable Development Principle in Energy Policy; The Particular Case of EC Biomass Regulation by Catherine Banet
part v operationalization of sustainable development:integration, diversity and complexity
chapter 5.1. Sustainable Development: an Operational Principle?Lessons from the Spanish Experience on Intensive Urban Growth by Angel-Manuel Moreno
chapter 5.2. A Sustainable Criminal Law – Criminal Law for Sustainability by Eva Westerlund
part vi climate change, energy and sustainable development
chapter 6.1. Sustainable Development within the Climate Change Regime by Massimiliano Montini
chapter 6.2. Climate Change and the Mandate of Sustainable Development:Observations from a Legal Perspective by Christina Voigt
chapter 6.3. Balancing Exploitation and Protection of the Dutch North Sea; The Dutch Struggle with the Need For Wind Energy at Sea and a Legal Framework for the Protection of the Marine Environment by Kars de Graaf

Citation preview

Sustainable Development in International and National Law

Europa Law Publishing, Groningen 2008

Sustainable Development in International and National Law What did the Brundtland Report do to Legal Thinking and Legal Development, and Where can we go From Here? Edited by Prof. Hans Christian Bugge & Dr. Christina Voigt

The Avosetta Series (8)

Europa Law Publishing is a publishing company specializing in European Union law, international trade law, public international law, environmental law and comparative national law. For further information please contact Europa Law Publishing via email: [email protected] or visit our website at: www.europalawpublishing.com. All rights reserved. No part of this publication may be reproduced or transmitted, in any form or by any means, or stored in any retrieval system of any nature, without the written permission of the publisher. Application for permission for use of copyright material shall be made to the publishers. Full acknowledgement of author, publisher and source must be given. Voor zover het maken van kopieën uit deze uitgave is toegestaan op grond van artikel 16h t/m 16m Auteurswet 1912 juncto het Besluit van 27 november 2002, Stb. 575, dient men de daarvoor wettelijk verschuldigde vergoedingen te voldoen aan de Stichting Reprorecht (Postbus 3060, 2130 KB Hoofddorp). Voor het overnemen van (een) gedeelte(n) uit deze uitgave in bloemlezingen, readers en andere compilatiewerken (artikel 16 Auteurswet 1912) dient men zich tot de uitgever te wenden. © Europa Law Publishing, the authors severally, 2008 Typeset in Scala and Scala Sans, Graphic design by G2K Designers, Groningen/Amsterdam ISBN 978-90-8952-074-6

Acknowledgements We thank the Research Council of Norway for generously supporting under its Environmental Law Programme both this book and the seminar on which it is based. We are also most grateful to the Nordic Environmental Law Network (NELN); the Norwegion foundation Lovsamlingsfondet; the Department of Public and International Law at the Faculty of Law, University of Oslo; and the Norwegian Ministry of the Environment for supporting the seminar “Sustainable Development in International and National law” held at Vettre, Norway, in May 2007. We thank each of the scholars in environmental and sustainable development law for contributing the papers contained in this book. We also thank Sissel Aastorp for technical assistance, Chris Saunders for improving the English language, and Øivind Dannevig for managing footnotes and references. April 2008 Hans Christian Bugge and Christina Voigt Research Group for Natural Resources Law Faculty of Law University of Oslo



Introduction This book investigates the concept of sustainable development, its understanding in legal theory and its implementation and enforcement in international law and domestic legal systems. By way of analysis, we hope to improve our understanding of the mandate of sustainable development and its impact on and importance in legal systems. The publication of the book marks the 20th anniversary of Our Common Future, the report of the World Commission on Environment and Development (WCED), also known as the Brundtland report, which was launched in London in April 1987. The origin of the concept of sustainable development cannot be exactly pinpointed. Some argue for its use by ancient civilizations wherever there was an attempt at reconciling the needs of development with the protection of the environment. However, in international and national laws, the idea of sustainable development is a recent development. It was the WCED report that brought it to wider public attention as an overarching objective for the world community to strive for. The report defines sustainable development as “a development that meets the needs of the present without compromising future generations to meet their own needs”. And it goes on explaining it as a process of change in which the exploitation of resources, the direction of investments, the orientation of technological development and institutional change are all in harmony and enhance both current and future potential to meet human needs and aspirations.

The WCED called for a root and branch transformation of policy in harmony with the needs of sustainable development. The concept was seen as addressing the parallel challenges of environmental degradation and social and economic development by recognizing the inextricable links between economic and environmental goals. It was in this context it was introduced to the international community. This idea of sustainable development as expressed by the WCED has had the most far-reaching implications for law and legal systems, on a global scale. Evidence is provided by the Conference on Environment and Development in Rio de Janeiro in 1992 – a direct follow-up of the WCED report – and the successive integration of sustainable development in its major documents. References to sustainable development as an objective or principle are found in the United Nations Framework Convention on Climate Change, the Convention on Biological Diversity, the Rio Declaration and Agenda 21. Since then, it has been incorporated into a multitude of international and national laws and given weight in international and national jurisprudence. Moreover, institutional developments 



WCED, Our Common Future, Oxford, OUP, 1987, 46.

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such as the establishment of the United Nations Commission on Sustainable Development and the 2002 World Summit on Sustainable Development (WSSD) in Johannesburg show the importance of the concept. Importantly, the WCED helped shape a new perception of the earth and the crisis which it faces. A new ecological reality of life is evident in the Commission’s work. In the introductory part of its report the Commission writes: We have in the past been concerned about the impacts of economic growth upon the environment. We are now forced to concern ourselves with the impacts of ecological stress – degradation of soils, water regimes, atmosphere, and forests – upon our economic prospects. We have in the more recent past been forced to face up to a sharp increase in economic interdependence among nations. We are now forced to accustom ourselves to an accelerating ecological interdependence among nations. Ecology and economy are becoming ever more interwoven – locally, regionally, nationally, and globally – into a seamless net of causes and effects.

Twenty years on the importance of sustainable development is even more evident, the task more urgent than ever. Recent debates about energy security and clean energy, the threat of global climate change, widespread poverty and the widening gap between rich and poor, the acceleration of biodiversity loss and other alarming trends only serve to underline the unchanged actuality of the concept and the issues it seeks to address. On the one hand, there is an increasing “sense of urgency” in the face of these issues. On the other hand, institutional inertia is all too obvious at the international as well as the national level; political and legal progress is painfully slow. This book therefore looks into the development of international and national law since the Brundtland report, and how it has been influenced and marked by the concept of sustainable development. It also tries to shed light on the concept’s legal content and nature. Is it an objective, a process, a principle, or mixture of each? As the chapter titles indicate, the meaning and application of sustainable development in law raise numerous issues and questions. Taking as a starting point the broad understanding of the concept as developed in the Brundtland report, the contributions to this book address primarily its environmental and natural resources dimension. The authors are all experts in national and/or international environmental and sustainable development law, and the book has predominantly an “environmental law perspective”. Given the complexity of sustainable development, the contributions clearly can’t exhaust all the issues that arise in this field of law. They address various aspects and indicate the diverse nature of questions associated with sustainable development. Even if many of the authors are familiar with, and have worked in developing countries, it must be admitted that the book primarily reflects views of environmental lawyers from the North, and mostly from Europe. We are conscious of

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this bias. Remarkable progress is being made in the field of sustainable development law in other parts of the world and we regret that voices of the South are not heard here. We will try to redress the imbalance on another occasion. The book commences in Part I with a review of the substance and message of the Brundtland report in terms of sustainable development by Hans Christian Bugge. This is followed by several broader theoretical discussions of the concept and its legal meaning by Gerd Winter, Staffan Westerlund, and Felix Ekardt. Part II investigates the ever widening imprint of sustainable development on international law in general. Here, Marie-Claire Cordonier Segger traces in a broad and detailed presentation the concept’s development in international law from its early roots to present status. Alan Boyle, Nico Schrijver and Tuula Kolari explore important aspects of the topic. In Part III, Markus Gehring, Åsa Romson, Nathalie Bernasconi-Osterwalder, Katinka Jesse and Marie-José van der Heijden introduce and discuss the functions of sustainable development in international trade and investment law. Part IV deals with sustainable development and its function in European Law. A general picture is provided by Ludwig Krämer, with specific chapters on waste policy from Nicolas de Sadeleer, public procurement from Ari Ekroos, and bioenergy from Catherine Banet. In Part V Angel Manuel Moreno and Eva Westerlund look at two examples of the ‘operationalization’ of sustainable development in particular legal areas, i.e., land use planning in Spain, and criminal law. Finally, Part VI deals with the importance of the concept in the context of energy and climate change regulation at the international and national level through contributions from Massimiliano Montini, Christina Voigt and Kars de Graaf. There is no single answer to what sustainable development entails and the articles in this book represent diverse opinions. There are many perspectives on and ways of studying and comprehending the concept. Some contributors are concerned with the lack of real progress and the problems in implementing the concept of sustainable development, and thus focus on its limitations. Others look at what has been accomplished, while enumerating evidence of sustainable development’s impact on national and international law all over the world, and future prospects. While the subject matter and arguments of some of the articles overlap, they were written independently, and should also be read as distinct contributions. And despite touching upon the same issues from different perspectives, they do not necessarily express the same points of view. However, they all share a common denominator: in order to make sustainable development operational, care of its preconditions – functional ecological processes – has to be prioritized. Sustainable development needs to be more specific. Not only does it require the balancing of interests, it needs to be recognised that the human world is inextricably linked to the natural world. Integration and balancing pose challenges of scale and alternatives but rely on the absolute preponderance of core services of the biosphere. The absolute limits of these services must be the starting point. Integration in the context of sustainable development means balancing various interests within a certain frame. It is not

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so much the mere integration of rights but the integration of these rights into the absolute frame set by ecosystem services and essential ecological conditions. Working with sustainable development puts the lawyer concerned with the environment in a ‘war-like situation’, a war where the victims are the environment, nature, ecological services and the welfare of future generations. Lawyers as warriors therefore need to know the arts both of defence and attack. Environmental lawyers are called to defend the concept of sustainable development, in order to prevent fragmentation into its manifold components. Sustainable development is an all-embracing concept but it has one core: to ensure that protection of the environment over the longer term is at least treated on an equal footing with economic development and enhancement of social equality and, when necessary, given priority over economic development. Yet environmental lawyers also need to attack. Environmental law more often than not reacts to what the legislator or administrator has already decided. Legal studies have been described as ‘the tail wagged by the dog’. Environmental lawyers’ work needs to be pro-active, to get at the root of the problems, reach out to various sectors, e.g. energy, agriculture, tourism, private property law etc. It needs to comprehend the whole concept of environmental law while increasing its scope. In accordance with the message of the Brundtland report, we urgently need to understand how environmental concerns are taken into account by and integrated into those fields of policy and law that are the root causes of environmental degradation. There is no time for complacency. Sustainable development is not a l’art pour l’art exercise; it is not an empty concept. The purpose of this book is to stimulate legal debate around one of the most important issues of our time. Giving sustainable development a definition and content and successfully implementing them will be a major preoccupation of international and national law, lawmakers, and institutions well into the twentyfirst century. Hans Christian Bugge and Christina Voigt



contents



part

Ackowledgements Introduction Contents Contributors

v vii xi xxiv

i Theoretical Perspectives and Legal Thinking on

Sustainable Development

chapter 1.1 1987-2007: “Our Common Future” Revisited

Hans Christian Bugge

1 The Commission and its Work 2 The Report’s General Presentation of Sustainable Development 3 Sustainable Development Applied to Specific Policy Areas 3.1 International Economy 3.2 Population 3.3 Food 3.4 Biodiversity 3.5 Energy 3.6 Industry 3.7 Urban Issues, International Commons, and Peace and Security 4 Proposals for Institutional and Legal Change 5 Summing up: Back to the Principle of Sustainable Development

3 6 10 10 11 12 13 14 16 16 17 19

chapter 1.2 A Fundament and Two Pillars; The Concept of Sustainable

Development 20 Years after the Brundtland Report Gerd Winter



1 The Report 2 The Three-pillar Concept of Sustainability 3 The Concept of Future-proof Politics 4 The WCED Version 4.1 The Level of Material Exchange Between Society and Nature 4.2 The Level of Societal Reflection and Regulation 4.3 The Relationship Between Industrial and Developing Countries 5 The Open Question of Scale 6 The Open Question of Juridification 6.1 Contributions of WCED 6.2 The Terminology of Principles  6.3 Levels and Areas of Juridification 7 Conclusion xi

25 25 29 30 30 32 34 34 37 37 39 39 43

sustainable development in international and national law

chapter 1.3 Theory for Sustainable Development; Towards or Against?

Staffan Westerlund

1 2 3 3.1 3.2 3.3 3.4 3.5 4 5

Introduction Three Environmental Legal Eras Research Aspects Against or Towards Pre-environmental Legal Research Old Environmental Legal Research New Environmental Legal Research Intermediate Conclusion: Against or Towards Theory Needs Concluding Remarks

49 51 53 53 54 54 55 58 58 64

chapter 1.4 Sustainability and a New Concept of Liberty

Felix Ekardt part

1 Liberty in the Context of the “Non-sustainability” of Western Civilization 2 Roots of “Non-Sustainability” 3 Liberty and Universal Justice 4 Sustainable Liberty 5 No Liberty Without Balancing 6 No Liberty Without Rules – The “Global Marshall Plan” Idea ii

69 71 73 77 80 81

Sustainable Development in International Law

chapter 2.1 Sustainable Development in International Law

Marie-Claire Cordonier Segger



1 Introduction 2 Making Development ‘Sustainable’? 2.1 Evolving Definitions of ‘Development’ 2.2 Origins of ‘Sustainable Development’ 2.2.1 Prior to the 1987 Report of the UN Commission on Environment and Development 2.2.2 The 1992 United Nations Conference on the Environment and Development and the United Nations Commission on Sustainable Development 2.2.3 The 1997 UN General Assembly Special Session on Sustainable Development 2.2.4 The 2002 World Summit for Sustainable Development (WSSD)

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87 88 88 91 92

98 104 107

contents



2.3 An International Meaning for ‘Sustainable Development’? 113 3 Sustainable Development in International Law: Reconceptualizing the Debate 116 3.1 The Legal Status of Sustainable Development 117 3.2 A Principle of Sustainable Development Versus a Sustainable Development Purpose  118 3.3 Sustainable Development as a Customary Principle of International Law 121 3.3.1 A Fundamentally Normative Character for Sustainable Development 121 3.3.2 General State Practice on Sustainable Development 129 3.3.3 Opinio Juris on Whether States are Bound by a Principle of Sustainable Development 138 3.4 Sustainable Development as an Object and Purpose of International Law 142 3.4.1 The Meaning and Effect of an ‘Object and Purpose’ in International Treaty Law 142 3.4.2 Sustainable Development as an Objective or ‘Purpose’ of International Law 147 3.4.2.1 Sustainable Development in the UN FCCC and the Kyoto Protocol 149 3.4.2.2 Sustainable Development in the UN Desertification Convention 150 3.4.2.3 Sustainable Development in the UN CBD and the Biosafety Protocol 152 3.4.2.4 Sustainable Development in the FAO Seed Treaty 155 4 Proposed Principles of International Law on Sustainable Development  163 4.1 The Process of Making Principles on Sustainable Development 163 4.2 The ILA New Delhi Declaration of Principles of International Law Relating to Sustainable Development 167 4.2.1 The Duty of States to Ensure Sustainable use of Natural Resources 167 4.2.2 The Principle of Equity and the Eradication of Poverty 168 4.2.3 The Principle of Common but Differentiated Obligations 169 4.2.4 The Principle of the Precautionary Approach to Human Health, Natural Resources and Ecosystems 170 4.2.5 The Principle of Public Participation and Access to Information And Justice 172 4.2.6 The Principle of Good Governance 173 4.2.7 The Principle of Integration and Interrelationship, in Particular in Relation to Human Rights and Social, Economic and Environmental Objectives 174

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4.3 A Principled Approach to International Law on Sustainable Development 176 4.3.1 Sustainable Development as an Interstitial Norm  176 4.3.2 Defining International Law on Sustainable Development, and the Normative Force of a Commitment ‘to Promote Sustainable Development’ 178

chapter 2.2 Between Process and Substance; Sustainable

Development in the Jurisprudence of International Courts and Tribunals Alan Boyle



1 Introduction 2 Is There a Justiciable ‘Right’ to Sustainable Development? 3 Sustainable Development in the Case Law 3.1 The International Court of Justice (ICJ) 3.2 The European Court of Human Rights (ECHR) 3.3 The African Commission on Human and Peoples Rights (ACHPR) 3.4 The Inter American Commission and Court of Human Rights (IACHR)  3.5 The United Nations Human Rights Committee (UNHRC) 4 Conclusions 

203 206 206 206 207 210 212 213 214

chapter 2.3 Development – The Neglected Dimension in the Post-Rio

International Law of Sustainable Development Nico Schrijver





1 Introduction 223 2 The Nature and Role of Public International Law 224 3 Sustainable Development – Exploring the Concept 225 4 The Inception of Sustainable Development in International Law 230 5 The Evolution of International Environmental Law and the International Law of Development Towards Sustainable Development 233 6 An International Law of Sustainable Development under Construction 237 7 Concluding Observations 243

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contents

chapter 2.4 The Principle of Common but Differentiated

Responsibilities as Contributing to Sustainable Development through Multilateral Environmental Agreements Tuula Kolari

part

1 Introduction 2 The Essence of the Principle of Common But Differentiated Responsibilities 3 The Concept of Sustainable Development in Brief 4 International Developments with the Concepts 5 CBDR and Sustainable Development Reinforce and Require the Application of Each Other  6 Concluding Remarks and Future Outlook 

251 251 254 255 259 262

iii Sustainable Development and International Trade and

Investment Law

chapter 3.1 Sustainable Development in World Trade Law; A Short

History

Markus W. Gehring

1 Contours of Sustainable Development within International Law 2 World Trade Law as an Instrument for Sustainable Development? 2.1 Negotiating Sustainable Development in the WTO? 2.2 ‘Sustainable Developments’ in Recent WTO Disputes? 3 New Instruments in Trade Law for Sustainable Development 4 Sustainable Development in the Doha Development Agenda 5 Conclusion

273 276 276 282 290 292 295

chapter 3.2 Any Steps Towards Sustainability in International

Investment Agreements? A Study of BITs of Nordic Countries and the US–Chile Free Trade Agreement Concerning the Potential to Conflict with Health and Environmental Measures Åsa Romson



1 1.1 2

Background Aim and Scope of the Article BITs by the Nordic Countries

303 304 304

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2.1 Reformulation of the Preamble 2.2 Traditional Approach in Core Paragraphs 2.3 No Incentives for Technology Transfer 3 The US –Chile Free Trade Agreement 3.1 Environmental Chapter Without Teeth 3.2 Development of the Fair and Equitable Treatment and National Treatment Provisions 3.3 Clarifying Indirect Expropriation and Regulatory Taking  3.4 Innovations in Dispute Settlement 3.5 Narrow Scope for Technology Transfer  4 Conclusions

305 307 309 310 310 312 312 314 315 315

chapter 3.3 Transparency, Participation and Accountability in

International Economic Dispute Settlement; A Sustainable Development Perspective Nathalie Bernasconi-Osterwalder





1 Introduction 2 Access to Information and Public Participation as a Human Right and a Prerequisite for Achieving Sustainable Development 2.1 The Linkage Between Access to Information, Public Participation and Sustainable Development 2.2 A Rights-based Approach to Access to Information and Public Participation 3 The Sustainable Development Aspects in International Economic Dispute Settlement 3.1 The Growing Importance of International Economic Dispute Settlement  3.2 Trade Disputes at the WTO 3.3 International Investment Disputes 4 Lack of Transparency and Public Participation in International Economic Dispute Settlement 4.1 Dispute Settlement Procedures at the World Trade Organization (WTO) 4.2 International Investment Arbitration  5 Final Remarks and Recommendations

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323

325 325 327 328 328 329 331 334 335 336 339

contents

chapter 3.4 Corporate Environmental Accountability as a Means for

Intragenerational Equity; ‘Hidden’ Environmental Impacts in the North-South Conflict Katinka Jesse and Marie-José van der Heijden

part

1 Hidden Environmental Impacts 2 Banking Approaches 2.1 The IFC and the Equator Principles  2.2 Some Drawbacks 2.3 Conclusion 3 Soft Law Instruments: the OECD Guidelines and the (draft) UN Norms 3.1 OECD Guidelines for Multinational Enterprises 3.2 UN Draft Norms on the Responsibilities of TNCs and Other Business Enterprises  3.3 Conclusion 4 Extraterritorial Regulation on TNCs 4.1 Extraterritoriality: Some Preliminary Remarks 4.2 The Example for Extraterritorial Regulation: The US ATCA 4.3 Extraterritorial Regulation Based on General Tort Law: The English Example 4.4 Dutch Possibilities to Incorporate Principles into Hard Law Mechanisms: Batco And Beyond 5 Conclusion iv

349 350 351 352 353 354 355 357 359 360 360 361 365 366 368

Sustainable Development in EC Law

chapter 4.1 Sustainable Development in EC Law

Ludwig Krämer

1 2 2.1 2.2 2.3 2.4 2.5 3 4 5

Primary EC Law Secondary EC Legislation Fisheries Policy Regional Policy Development Policy  Energy Policy Environmental Policy Policy Statements Discussion of the Findings  Concluding Remarks

377 379 379 381 383 385 386 387 391 393

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sustainable development in international and national law

chapter 4.2 Sustainable Development and EU Waste Law

Nicolas de Sadeleer

1 Introduction 2 Sustainable Development and Waste 3 Sustainable Waste Management Enhanced in a Flurry of Soft Law Instruments 4 Unsustainable Trends 5 Waste Management Hierarchy: Emphasis Being Given to Prevention 6 The Scope of the Waste Legislation Impinges upon the Objective of Prevention 7 Scope of the Waste Definition: Economic Reutilization 8 Scope of the Waste Definition: The Difference Between Waste and By-products  9 Recovery Operations: The Production of Secondary Materials 10 How to Enhance a Sustainable Approach: Look at Waste not in Isolation but as Products 11 Conclusion

399 399 401 402 403 406 409 410 412 415 418

chapter 4.3 EC Legislation on Public Procurement and Sustainable

Development Ari Ekroos



1 Introduction 2 Studies on Green Public Procurement 3 Policy Background and Conditions Related to Principles  3.1 New Environmental Policy – Product Approach 3.2 Sustainability Goals and Competition Law Objectives 4 Public Procurement Legislation in Force 4.1 ‘New’ Directives  4.2 Jurisprudence and Some Other Relevant Documents 4.3 Environmental Matters – General  4.4 Environmental Requirements in Technical Specifications and other Requirements 4.5 Contract Award Criteria  5 Development Tasks and Challenges  6 Final Remarks

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425 426 427 427 429 430 430 431 432 433 435 437 439

contents

chapter 4.4 Bioenergy as Integration of the Sustainable Development

Principle in Energy Policy; The Particular Case of EC Biomass Regulation Catherine Banet



1 Introduction 445 1.1 Integrating Sustainable Development into Energy Policy: Goals And EC Legal Achievements 445 1.2 Biomass Regulation Challenges 447 2 Definition of Biomass under EC Law 448 2.1 The Existing Legislation Defining Biomass 448 2.2 Problems Related to the Application of the Current Definition of Biomass 450 2.3 Solutions under Evaluation 452 3 Regulation of the Production of Bioenergy from Biomass under EC Law  453 3.1 The Different Modalities of Biomass Conversion 453 3.2 The Applicable Legal Regime to the Different Biomass Conversion Methods 454 4 Regulation of Bioenergy Produced from Biomass under EC Law 456 4.1 The Different Uses of Bioenergy From Biomass 456 4.2 The Regulation Of Bioenergy Utilisations of Biomass 456 4.2.1 Power and Heat Generation From Biomass 456 4.2.2 Power Generation From Biomass 457 4.2.3 Heat Production From Biomass 457 4.2.4 Transport/biofuels Production From Biomass 458 4.3 Certification of Biomass as an Answer to Sustainability Issues 458 4.3.1 Certification as a Safeguard of Sustainable Bioenergy Use 458 4.3.2 Certification as a Safeguard of Sustainable Biomass Production 460 5 EC Regulatory Framework for the Promotion of Biomass as a Source of Energy  462 5.1 EC Legal Instruments Designed to Promote Biomass 463 5.1.1 General Regulatory Framework for the Promotion of Renewable Energy Sources 463 5.1.2 Instruments Designed to Promote the Use of Biomass in the EU 463 5.2 Enabling the Availability of Biomass on the Internal Market: Trading Issues 465 5.3 Enabling the Use of Energy From Biomass: Access to the Grid 466

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part

6 What did the Brundtland Report do to Legal Thinking and Legal Development?… 7 … And Where can we go From Here?  v

466 468

 perationalization of Sustainable Development: O Integration, Diversity and Complexity

chapter 5.1 Sustainable Development: an Operational Principle?

Lessons from the Spanish Experience on Intensive Urban Growth Angel-Manuel Moreno



1 Introduction 477 2 Land Development, Building Activity and the Environment  477 2.1 Some Facts and Figures 477 2.2 Environmental Impact of This Pattern of Urban Growth 479 2.3 International Repercussions 480 3 Town Planning and Land Development in Spain: Basic Features  481 3.1 A Highly Regulated Activity  481 3.2 Allocation of Powers 481 4 The Environment versus Land Development, under the Law 483 4.1 Constitutional Recognition of the PSD 483 4.2 The PSD in the Legislation on Town Planning and Land-use 484 4.3 Environmental Conditioning of Land Use and Building Activity 487 4.3.1 Preservation of Watercourses and the Coastal Area 488 4.3.2 Nature Conservation 488 4.3.3 Noise Control and Air Pollution 489 4.3.4 Building Regulation 489 4.3.5 Landscape Protection 489 4.3.6 Spatial Planning 490 4.3.7 Environmental Impact Assessment for Land Use Plans 491 5 The Enforcement Gap 491 5.1 Administrative Tolerance and Inaction as a Major Shortcoming; The Social Context 491 5.2 Operationalisation of the PSD in Courts 493 6 Conclusions: Making the PSD an Operational Legal Rule 496

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contents

chapter 5.2 A Sustainable Criminal Law – Criminal Law for

Sustainability

Eva Westerlund part

1 Introduction 2 Sustainable Development and its Relation to the Precautionary Principle 3 Sustainable Development in the Swedish Environmental Code  4 To Protect the Environment Through Criminal Law 5 To Protect the Administrative System  6 To Protect the Environment As Such 7 How can Sustainable Development be Used in Interpretation of Existing Rules? 8 How can Sustainable Development be Used to Make New Rules? 9 Concluding Remarks vi

503 505 506 508 510 511 513 515 516

Climate Change, Energy and Sustainable Development

chapter 6.1 Sustainable Development within the Climate Change

Regime

Massimiliano Montini



1 Introduction: The Legal Understanding of the Concept of Sustainable Development  523 2 The Interplay Between Sustainable Development and Climate Change: The Climate Change Perspective 529 3 The Interplay Between Sustainable Development and Climate Change: The Sustainable Development Perspective 531 4 Sustainable Development In Practice Within the Climate Change Regime: The Definition Of Sustainable Development Criteria for CDM Projects 533 5 Conclusion: Can CDM Projects Contribute to Achieving Sustainable Development?  538

chapter 6.2 Climate Change and the Mandate of Sustainable

Development: Observations from a Legal Perspective Christina Voigt



1 Introduction 547 2 Sustainable Development in the Context of Climate Change 547 3 Sustainable Development as Reflected in the International Climate Change Regime 553

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3.1 3.2 3.3 3.3.1 3.3.2 3.3.3 3.3.4 3.3.5 4

References in the UNFCCC Kyoto Protocol and Subsequent Documents Indirect References Intergenerational Dimension Differentiation and Intragenerational Equity North–South Partnership Funding and Financial Obligations Economic Flexibility Concluding Remarks

553 554 556 556 558 561 563 566 567

chapter 6.3 Balancing Exploitation and Protection of the Dutch North

Sea; The Dutch Struggle with the Need For Wind Energy at Sea and a Legal Framework for the Protection of the Marine Environment Kars de Graaf



1 Introduction to the Dilemma 2 Legal Aspects of Wind Energy in the North Sea 2.1 The North Sea and International Marine Protection 2.2 The Dutch Legal Framework 3 Does Dutch Policy on Wind Farms at Sea Make up for the Inadequate Legal Framework? 3.1 Policy for the Granting of Licences 3.2 National Policy on the North Sea 4 When does the Struggle End?

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575 576 576 581 583 584 585 588

List of Contributors

sustainable development in international and national law

Catherine Banet Catherine Banet, I.E.P. (Aix-en-Provence), LLB (Lille), LLM in Environmental and Energy Law (Katholieke Universitet Leuven), Master in European Studies (IES, Université Catholique de Louvain), MA in International Politics (Ceris, Brussels/Paris XI) is PhD research fellow at the University of Oslo, Faculty of Law, Scandinavian Institute for Maritime Law, Petroleum and Energy Law Department; Oslo, Norway. Nathalie Bernasconi-Osterwalder Nathalie Bernasconi-Osterwalder is the managing attorney of the Geneva office of the Center for International Environmental Law (CIEL). She works primarily on issues relating to trade, investment and sustainable development. Ms. Bernasconi is a former fellow of the Institute of International Economic Law in Washington, D.C. and has worked for the United Nations Development Programme (UNDP) in Vietnam, for the Australian law firm Phillips Fox, and for the Justice Department in Switzerland. Alan Boyle Alan Boyle has been professor of Public International Law at the University of Edinburgh School of Law since 1995. His publications include International Law and the Environment (with Patricia Birnie) (OUP, 2002) and The Making of International Law (with Christine Chinkin) (OUP, 2007). He has represented various governments in proceedings before the ICJ, the ITLOS and the PCA. Hans Christian Bugge Hans Christian Bugge is professor of Environmental Law at the University of Oslo. He holds doctorates from Université de Paris II and University of Oslo. Earlier he held senior positions in Norway’s Ministry of the Environment, and was deputy minister for development cooperation. He was personal advisor to Gro Harlem Brundtland as chair of World Commission on Environment and Development. Marie-Claire Cordonier Segger Marie-Claire Cordonier Segger, MEM (Yale) BCL & LLB (McGill) BA Hons is Director of the Centre for International Sustainable Development Law (CISDL), a Fellow of the Lauterpacht Centre for International Law at Cambridge University, a member of the World Future Council and the International Law Association’s Committee on International Law on Sustainable Development, and directs international affairs for the Canadian Ministry of Natural Resources. She has authored and edited twelve volumes on sustainable development issues and lectures in several university law faculties. She also advises the UN and several governments on implementation of international treaties related to sustainable development.

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contributors

Kars J. de Graaf Dr. Kars J. de Graaf (1976) teaches environmental law, housing law and spatial planning law at Groningen University (department for administrative law and public administration) in the Netherlands. He obtained his PhD for his research on the possibilities en consequences of settling administrative conflicts pending court proceedings. He is honorary judge at Leeuwarden District Court and the managing editor of the Review of European Administrative Law (REALaw). Nicolas de Sadeleer Nicolas de Sadeleer was the recipient of one of the first EU Marie Curie chairs that was established at the law faculty of the University of Oslo from 2004 to 2005. He has been teaching law in several universities in Belgium, France, Peru, Thailand and Norway and working as a consultant for several national and international authorities. Nicolas de Sadeleer’s areas of research and teaching include EC and International environmental law, health and consumer law, free movement of goods, Belgian environmental law, subjects on which he publishes and speaks extensively (among others Environmental Principles (Oxford: Oxford University Press, 2002) and Droit international et communautaire de la biodiversité (Paris: Dalloz, 2004)). Felix Ekardt Dr. Felix Ekardt, LL.M., M.A., is professor of Environmental Law at the University of Bremen. His research interests include legal/ philosophical/ sociological theory of sustainability; environmental law; theory of fundamental rights; and WTO law. He is a member of various advisory commissions, author for various big newspapers, and speaker at the World Congress of legal philosophers in 2007, as well as at the World Congress of the legal sociologists and at the World Sustainability Congress. Ari Ekroos Ari Ekroos, LL.D is professor of Economic Law at the Helsinki University of Technology. The professorship includes widely environmental, land use planning and public law. He has been participating in the preparation of the most important parts of the Finnish environmental legislation and he has been legal advisor in several legal cases. He also is the chairman of the Finnish Eco-Labelling Board. Markus Gehring Markus Gehring, LL.M. (Yale), Dr. Jur. (Hamburg), is Lead Counsel, Trade, Investment and Competition Law, at the Centre for International Sustainable Development Law (CISDL); member of the Concerted Action on Trade and the Environment Research Consortium (funded by the European Union); and Lecturer, Public International Law and European Law, Cambridge University; Fellow, Robinson College. xxv

sustainable development in international and national law

Katinka Jesse Katinka Jesse is conducting a PhD on the substantive influence of Environmental Impact Assessment on the decision-making (Tilburg University, The Netherlands), to be published spring 2008. She published in Dutch law journals, was involved in several contract researches, and is co-editor of the Dutch Journal of Environment and Law (Tijdschrift voor Milieu en Recht) with regard to Dutch and European case law. Tuula Kolari Tuula Kolari (M. & Lic. Admin.Sc., LL.M) is a researcher and PhD candidate (International Environmental Law) at the University of Joensuu, Finland. She has previously studied compliance issues and the right to a decent environment. Her current research is about the principle of common but differentiated responsibilities in international environmental agreements. Ludwig Krämer Ludwig Krämer was judge at the Landgericht Kiel and worked, for more than thirty years, in the environmental department of the European Commission. He retired in 2004. Since then he lectures in Bruges, Bremen, Copenhagen and London and is partner of an environmental consultancy “Derecho y Medio Ambiente” in Madrid. Massimiliano Montini Massimiliano Montini is associate professor of European Union Law at the University of Siena (Italy) and a fully qualified lawyer, member of the Italian Bar. He is also Director of the Environmental Legal Team (ELT), a University-based research and consultancy group located within the University of Siena. Moreover, he is consultant to the Italian Ministry for the Environment, Land and Sea and is he is Deputy Director of the bi-annual Summer School in International and European Law, organised by the University of Siena, in cooperation with University College London. Ángel-Manuel Moreno Ángel-Manuel Moreno is a professor of Law at Carlos III University of Madrid. He holds a Master´s degree in Law (LL.M) from Harvard University (as a Fulbright scholar) and a Doctorate in Law from Carlos III University. His teaching and research focus on Administrative and Environmental Law, both at the Spanish and European levels; topics on which he has published extensively in different languages. Nico J. Schrijver Dr. Nico J. Schrijver holds the Chair of Public International Law at Leiden University and is the Academic Director of its Grotius Centre for International Legal Studies. From 1994 to 2002 he was Rapporteur of the ILA

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Committee on Legal Aspects of Sustainable Development whose work resulted in the ILA New Delhi Declaration of Principles of International Law Relating to Sustainable Development in April 2002 and since 2003 he serves as the Chair of this Committee. Furthermore, Nico Schrijver serves as the President of the Netherlands Society of International Law and is a member of the UN High-level Task Force on the Right to Development. Åsa Romson Åsa Romson is a doctoral student in Environmental Law at the University of Stockholm. She writes about International Investment Agreements and their impact on the function and development of environmental law. She has previously been working with international policy issues at the Swedish NGO Centre for Development Cooperation, Forum Syd. Christina Voigt Dr. Christina Voigt is a post doctoral research fellow at the Department of Public and International law, University of Oslo, Norway. She obtained the First (Universität Passau, 1996) and Second (1999) German Legal State Examination, holds a Master of Laws in Environmental Law degree (LL. M.-Envir) from the University of Auckland, New Zealand (2002), and received a doctorate in law from the University of Oslo in 2007. Her teaching and research is on international and national environmental law and public international law. Gerd Winter Gerd Winter is professor of Public Law and the Sociology of Law at the University of Bremen and director of the Research Center for European Environmental Law (FEU). His research focuses on comparative, European and international environmental law. His present research projects are concerned with marine fisheries, toxic chemicals, biotechnology, and the emergence of transnational administrative law. Eva Westerlund Eva Westerlund, LLM, is a teacher and doctoral student at the University of Technology in Luleå, Sweden. The subject of her thesis is environmental criminal law and more specific how endangerment of the environment is criminalised in Swedish law. Staffan Westerlund Staffan Westerlund (born 1942) is chair professor of Environmental Law at Uppsala University. Starting in positive environmental law (doctoral dissertation 1975) with environmental problems in perspective, his research was expanded to include environmental law methodology and – lately – genuine environmental law theory. After law commentaries, textbooks and monographs on methodology and theory, Environmental Law Methodology Fundamentals is planned to be published in 2008. xxvii

sustainable development in international and national law

Marie-José van der Heijden Marie-José van der Heijden is junior researcher and lecturer at Tilburg University in the Netherlands. She holds master’s degrees in law and philosophy. She is writing her PhD on transnational corporations and human rights violations by linking standards of public international law to civil litigation procedures. Her interests are in the areas of international humanitarian law, company law, corporate social responsibility, private international law.

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part i theoretical perspectives and legal thinking on sustainable development chapter 1.1

1987-2007: “Our Common Future” Revisited Hans Christian Bugge

chapter 1.1

1987-2007: “our common future” revisited

In the middle of the 20th century, we saw our planet from space for the first time. Historians may eventually find that this vision had a greater impact on thought than did the Copernican revolution of the 16th century, which upset the human self-image by revealing that the Earth is not the centre of the universe. From space, we see a small and fragile ball dominated not by human activity and edifice but by a pattern of clouds, oceans, greenery, and soils. Humanity’s inability to fit its doings into that pattern is changing planetary systems, fundamentally. Many such changes are accompanied by life-threatening hazards. This new reality, from which there is no escape, must be recognized – and managed.  With these words of introduction the World Commission on Environment and Development (WCED) sets the stage for its report “Our Common Future”. Its main message is “a call for action”: Major, fundamental changes in policies must take place both within states and in the international community of states. The challenge is extremely urgent: “We are unanimous in our conviction that the security, well-being and very survival of he planet depend on such changes, now.” The recipe is ‘sustainable development’ as defined, explained, and elaborated by the Commission. Sustainable development is what the whole report is about. This chapter will present the substance of the report, and highlight some of the points of particular relevance for a discussion of the report’s impact on the development of national and international law. Its aim is not to make a critical analysis of the report, although there is certainly room for debate on its basic approach, its view on development, and the depth of the analyses. Its critics have been many, but I leave answering them to others. My purpose is simply to detail the essence of the report as a factual background for the discussions in the chapters that follow.



1 The Commission and its Work

The World Commission on Environment and Development was established in the autumn 1983 by a resolution of the General Assembly of the United Nations. The UN Secretary General, Javier Perez de Cuellar, asked Gro *

 Hans Christian Bugge is professor of environmental law at the University of Oslo. He served in 1986-87 as personal advisor to Prime Minister Gro Harlem Brundtland in her capacity as chair of the World Commission on Environment and Development, and as state secretary in Norway’s Ministry for Development Cooperation. 

“Our Common Future”, p. 1.

 

Hereafter “the Commission”.

WCED 1987.

 

P. 23.

General Assembly Resolution 38/161.



sustainable development in international and national law

Harlem Brundtland to chair it. She writes in her foreword to the report that she hesitated very much when she was asked. But the Secretary General presented her with an argument to which there was no convincing rebuttal: No other political leader had become Prime Minister with a background of several years of political struggle, nationally and internationally, as an environment minister. This gave some hope that the environment was not destined to remain a side issue in central, political decision making.

The former Minister of Foreign Affairs of Sudan, Dr. Mansour Khalid, was appointed vice-chairman. Together, Brundtland and Khalid appointed the 20 remaining members of the Commission. The Canadian Jim MacNeill, Director of Environment in OECD, became Secretary General and ex officio member of the Commission. A secretariat was established in Geneva. It played an important role as “think tank” for the Commission. The Commission had 22 members from 21 nations. They had been carefully selected to represent different regions and groups of nations of the world: North and South, developed and developing countries, East and West (this was still during the Cold War). They differed widely in experience, competence and cultural background: They were scientists and diplomats, environmentalists and economists, and politicians from all corners of the world and of highly different convictions. The Commission was to be independent. The members were selected on the basis of competence, experience and perspective. They served in their personal capacities, not as representatives of their governments. They brought to the work a variety of values and attitudes, perceptions of the problems they were to discuss, and expectations. Yet, after only three years of work, they presented a unanimous report. As they state in the report, they often disagreed on details and priorities – but they “were finally able to agree to the lines along which change must be drawn”, because of the urgency of the problems and the importance of the cause and the message. Gro Harlem Brundtland says in her foreword: We … come from widely differing backgrounds…. As Commissioners, however, we were acting not in our national roles but as individuals; and as we worked, nationalisms and the artificial divides between ‘industrialized’ and ‘developing’, between 

P. ix. Due to a change of government in 1981 Ms. Brundtland was no longer prime minister of Norway in 1983. She was member of Norway’s parliament, the Storting, chairman of Norway’s Labour Party and thus leader of the opposition. She became prime minister again in 1986 and held that position when “Our Common Future” was launched in 1987.



At least half the members were to be selected from the developing world.



P. 343.



chapter 1.1

1987-2007: “our common future” revisited

East and West, receded. In their place emerged a common concern for the planet and the interlocked ecological and economic threats with which its people, institutions, and governments now grapple… The fact that we all became wiser, learnt to look across cultural and historical barriers, was essential.10

The Commission described the challenge in its mandate, adopted at the inaugural meeting in October 1984: to build a future which is more prosperous, more just, and more secure because it rests on policies and practices that serve to expand and sustain the ecological basis of development.11

It invited suggestions from, participation and support of all in order to assist it urgently: international organisations, governments, NGOs, scientific institutes, business, and individuals.12 It decided to hold its meetings in all regions of the world in order to get first-hand views of the environmental and development issues facing us. In connection with these visits it carried out a quite unique programme of public hearings. They served to bring literally thousands of people, from many walks of life, in direct contact with the work of the Commission, and the opportunity to influence it.13 The many citations in the report are witness of this. At the outset, some may have perceived the Commission as a body addressing mainly environmental issues. However, the development dimension was clearly there from the outset. And as the work progressed, the challenges of endemic poverty in many developing countries became a major concern. What was really new in the report was the linking of the two fundamental challenges we are facing: the poverty of a large part of the world’s population, and the environmental crisis that threatens the very survival of life on the planet. Until then, these used to be treated as separate problems, with different and often mutually inconsistent constituencies and agendas: environmental problems as a problem of affluence of the “North”, development as meaning ‘what poor nations should do to become richer’.14 The Commission clearly rejects this perception: But the ‘environment’ is where we all live; and ‘development’ is what we all do in attempting to improve our lot within that abode. The two are inseparable.15 

P. xii.

10 11

P. xiii.

P. 356.

12 13

P. 356-357.

In the back of the report there is a list of some 1,000 individuals and institutions that gave registered input to the work in one way or another.

14 15

P. xi.

Ibid,



sustainable development in international and national law

So, the Commission strived to combine and strike a balance between what at the outset seemed to be conflicting goals – environmental protection and economic development. This was achieved through the concept of ‘sustainable development’ and the Commission’s thorough discussion of what sustainable development means.



2 The Report’s General Presentation of Sustainable Development

What then is the message, the essence of the report? The Commission starts by presenting the actual situation and problems under the heading “A Threatened Future”.16 It illustrates what is called the interconnection between the problems of poverty and environmental degradation, and the grim perspectives for the future if changes are not made. In a short version this is described as follows: many present development trends leave increasing numbers of people poor and vulnerable, while at the same time degrading the environment. How can such development serve next century’s world of twice as many people relying on the same environment? This realization broadened our view of development.17

It goes on, These related changes have locked the global economy and global ecology together in new ways. We have in the past been concerned about the impacts of economic growth upon the environment. We are now forced to concern ourselves with the impacts of ecological stress – degradation of soils, water regimes, atmosphere and forests – upon our economic prospects. … Ecology and economy are becoming ever more interwoven – locally, regionally, nationally and globally – into a seamless net of causes and effects.18

The Commission’s answer to this challenge was to elaborate the need for “a new development path, one that sustains human progress not just in a few places or for a few years, but for the entire planet into the distant future”. Thus – again to cite the report – “sustainable development’ becomes a goal not just for the ‘developing nations’ but for industrial ones as well.”19 When I personally joined the work of the Commission in 1986 as one of Gro Harlem Brundtland’s advisors the Commission discussed a first draft chapter 16 17

Chapter 1.

P. 4.

18

P. 5.

19

P. 4.



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1987-2007: “our common future” revisited

on the concept of sustainable development. It was a vivid discussion indeed. The members brought their different experiences and perspectives into the debate. The result was the broad and rich analysis of what sustainable development means and how it can be achieved as spelled out in particular in chapter 2 of the report. In spite of weaknesses and problems with sustainable development as a policy guideline – as reflected in the heated debates and criticism of it over the last 20 years – the chapter as a whole is consistent, convincing and indeed inspiring. The short definition is presented as the opening phrase of chapter 2: Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It continues: It contains within it two key concepts: • t he concept of ‘needs’, in particular the essential needs of the world’s poor, to which overriding priority should be given; and • t he idea of limitations imposed by the state of technology and social organization on the environment’s ability to meet present and future needs. As far as future generations are concerned, the definition does not refer to "their needs", but to "their own needs”. Future generations may have other needs and aspirations than we have today. We don’t know. It is up to them to decide where their priorities lie. The essential thing is to keep options open for future generations. The commission elaborated on this by drawing attention to the fact – several times in the report – that many current activities may show a profit on the balance sheets of our generation, but our children will inherit the losses. We borrow environmental capital from future generations with no intention or prospect of repaying. … We act as we do because we can get away with it: future generations do not vote; they have no political or financial power: they cannot challenge our decisions.20

The expression “meet the needs of the present” means that basic needs for food, water, housing, education, and health are ensured for everybody on the Earth. It is not unfair to say that the Commission saw the enormous problems of poverty as the most urgent challenge. This is also what explains the explicit recommendation in the report for stronger economic growth globally. This came as a surprise – and also as a disappointment – to many as economic growth is a root cause of environmental problems. On this point, the report has been subject to much criticism in particular from the environmental community. But it must 20

P. 8.



sustainable development in international and national law

be seen in the perspective of population growth. With the rapid increase in the world’s population, and with the need to improve living conditions for billions of people living today, strong economic growth globally is absolutely necessary. At the same time, it identifies the distribution of growth as a core issue: Meeting essential needs requires not only a new era of economic growth for nations in which the majority are poor, but an assurance that those poor get their fair share of the resources required to sustain that growth.21

“Reviving growth” is one of the Commission’s “critical objectives” for environment and development policies that follow from the concept of sustainable development. But strengthened growth is only justifiable if the “quality of growth“ is changed “to make it less material- and energy-intensive and more equitable in its impact”.22 Growth must change in quality so as to avoid environmental problems and depletion of natural resources, and it must be more equally distributed both between and within nations. Much of what follows in the subsequent chapters of the report is an attempt to clarify what changing the “quality” of growth actually means. By stressing the need for economic growth, the Commission consciously avoided putting a “limits to growth” stamp on its work. At the same time, however, it clearly recognized that growth had to be limited due to environmental consequences. It states this several times in chapter 2 on sustainable development: “Perceived needs are socially and culturally determined, and sustainable development requires the promotion of values that encourage consumption standards that are within the bounds of the ecological possible and to which all can reasonably aspire.” As a minimum, “sustainable development must not endanger the natural systems that support life on Earth: the atmosphere, the waters, the soils, and the living beings.”23 New technology may enhance the capacity of the resource base. But ultimate limits there are, and sustainability requires that long before these are reached, the world must ensure equitable access to the constrained resource and reorient technological efforts to relieve the pressure.24

It states that the exploitation of renewable resources like forests and fish stocks should be within the limits of regeneration and natural growth. As for non-renewable resources, like fossil fuels and minerals, the rate of depletion should take into account the criticality of that resource, the availabil-

21

Ibid.

22 23

P. 52.

P. 44-45.

24

P. 45.



chapter 1.1

1987-2007: “our common future” revisited

ity of technologies for minimizing depletion, and the likelihood of substitutes being available.25 The other “critical objectives” of sustainable development, in addition to “reviving growth” and “changing the quality of growth”, are described as follows: • meeting essential needs for jobs, food, energy, water and sanitation; • ensuring a sustainable level of population; • conserving and enhancing the resource base; • reorienting technology and managing risk; • merging environment and economics in decision making. The Commission elaborates on these objectives as important elements of sustainable development. It also stresses the need for citizen participation, the empowering of people’s organisations and strengthened local democracy as prerequisites for sustainable development.26 Furthermore, it emphasizes the need for technological innovation and development, in order both to make developing countries capable of responding to the challenges they face, and find solutions to the environmental problems. In fact, the Commission sees present technology as part of the problem, by the rather thought-provoking statement that sustainable development contains “the idea of limitations imposed by the state of technology and social organization on the environment’s ability to meet present and future needs.”27 An important point is that sustainable development implies a responsibility for everybody, private and public sector alike. All branches of government, the business community, research institutions, non governmental organisations, and the public should have it high on their agenda. A key word is integration, integration of equity and efficiency, integration of long-term environmental concerns into economic policy, and of all sectors of society. All sector authorities must take responsibility for their environmental effects. This is spelled out in one important section of the report: “Getting at the Sources”. It recommended important institutional changes to make way for a more holistic and integrated policy. Since 1987 the concept of sustainable development has become “a household word” to politicians, natural and political scientists, economist, and lawyers – although not really to the public. It is the subject of policy documents and legislation all over the world, and at all political levels. As is well known, the concept also has been subject to innumerable interpretations. In a recent article Jim MacNeill, the secretary general and member of the Commission, comments on this phenomenon, adding,

25

P. 46.

26 27

P. 63.

P. 43.



sustainable development in international and national law

Many of them, of course, are totally self-serving. I no longer shock easily but I remain stunned at what some governments in their legislation and some industries in their policies claim to be ‘sustainable development’.28

The concept has been both hailed and severely criticized. The main criticism is that it is too vague to be really useful: Trying to combine the basically opposite goals of economic growth and environmental protection may please and win the support of all the important communities, but it does not give clear directions and solutions to the inherent conflicting interests. But those who read the report through will see that the Commission provides a lot of flesh to the bone. After presenting the concept of sustainable development in a general way, the Commission goes on to discuss what it means for policy direction and action in the most important problem areas.



3 Sustainable Development Applied to Specific Policy Areas



3.1 International Economy

The first issue is The Role of the International Economy (chapter 3). The Commission states that the pursuit of sustainability requires major changes in international economic relations. This is a brief and sharp analysis of the interface between international economy, development and the environment. A core statement is the following: The Commission’s overall assessment is that the international economy must speed up world growth while respecting the environmental constraints.29

It recommends enhanced flow of resources to developing countries and it discusses the link between trade, environment and development. This was written long before WTO was established. But the Commission has a clear recommendation as regards the international trade organisations at the time, mainly GATT and UNCTAD. The links between trade and the environment must be taken up systematically, and the mandates of these organizations should include sustainable development. Their activities should reflect concern with the impacts of trading patterns on the environment and the need for more effective instruments to integrate environment and development concerns into international trading arrangements.30 28

MacNeill 2006, p. 2.

29 30

P. 89.

P. 84. See also the discussion on ‘hidden environmental impacts’ in the chapter by van der Heijden and Jesse in this book.

10

chapter 1.1

1987-2007: “our common future” revisited

Here the report anticipates the important – and continuous – “trade and environment” debate, and its message is clear: environmental problems must be an important concern in the further development of international trade rules. The report takes up the issue of what it calls ‘hidden’ environmental costs in developing countries. The damage to the environment and natural resources due to weak environmental policy means that the export price of many of their products does not reflect the costs of environmental damage and of controlling that damage. The Commission warns against this, saying that it is in the developing countries’ own long-term interest that more of the environmental and resource costs associated with production be reflected in prices. And it cautiously adds, “Such changes must come from the developing countries themselves.” 31 Ensuring responsibility in transnational investments was also a topic in the report, well before the concept of Corporate Social Responsibility was defined and put on the international agenda. The report discusses the substantial impact transnationals can have on the environment and resources of other countries and on the global commons. It urges both home and host countries of TNCs to share responsibilities and work together to strengthen policies in this sphere.32



3.2 Population

The population issue was a sensitive topic for the Commission. On the one hand, the population growth was a major concern and an important element in its arguing for the need for strengthened economic growth as well as for the need to change the content and distribution of growth. It states clearly that “present rates of population growth cannot continue”. A “sustainable level of population” is one of the “critical objectives” of sustainable development.33 The chapter, called “Population and Human Resources” (chapter 4), consciously presents a mainly positive, “pro-active” agenda to meet the challenge of population growth, an agenda of economic development, improved education, health and nutrition, and empowerment of vulnerable groups. People are not primary a “liability” but an “asset” to society – “the ultimate resource”34 – and thus part of the solution to the problems. Significantly, the key section of the chapter is called “From Liability to Asset”. The Commission had to say bluntly that some governments had to work to limit population growth, as one of many important tasks. On the other hand, it did not want to present high birth rates and big families in developing countries as an important problem in itself. In brief, the task is “to realize human potential so that people can better husband and use resources; and to provide people 31

P. 84.

32 33

P. 86.

P. 49.

34

P. 95.

11

sustainable development in international and national law

with forms of social security other than large numbers of children.” The population policy is also defined as “a way of assuring – especially for women – the basic human right of self-determination”.35 It chose cautious wording on the issue of birth control. Family planning services must be integrated with other efforts to improve access to health care and education. A key issue in the Commission’s debate on population and population growth was the differences in consumption between people in developed and developing countries. It was important for the Commission to link the problems of population growth in the South directly to the effects of high consumption in the North. It attacked the consumerism of societies in industrial countries. The life style of the affluent societies had to be changed to keep within the planet’s ecological means. The huge differences in what we now label “ecological footprints” were recognized and squarely addressed: Nor are population growth rates the challenge solely for those nations with high rates of increase. An additional person in an industrial country consumes far more and places far greater pressure on natural resources than an additional person in the Third World. Consumption patterns and preferences are as important as numbers of consumers in the conservation of resources.36

This chapter also deals explicitly with the issue of “so-called indigenous or tribal peoples”. It describes in alarming terms the challenges they face. It is the task of the international community to prevent destruction of their culture and the rich knowledge of the environment in which they live. The Commission draws what could be called a “blueprint” of basic principles, which later have become widely recognized if not sufficiently implemented. The starting point for a just and humane policy for such groups is recognition and protection of their traditional rights to land and the other resources that sustain their way of life – rights they may define in terms that do not fit into standard legal systems. … These groups’ own institutions to regulate rights and obligations are crucial for maintaining the harmony with nature and the environmental awareness characteristic of their traditional way of life.37



3.3 Food

In the next chapter, “Food Security” (chapter 5) the Commission has some strong criticism for the policy of agricultural subsidies in the industrial countries. It sketches a broad agenda for more sustainable food production in both these countries and developing countries while underlining the need for more effective incentive systems, including education, to encourage agricultural 35

P. 95-96.

36 37

P. 95.

P. 115.

12

chapter 1.1

1987-2007: “our common future” revisited

production in many developing countries, especially food crops, and production by small farmers.



3.4 Biodiversity

One of the most interesting chapters in hindsight is the one on protection of biodiversity, called “Species and Ecosystems: Resources for Development” (chapter 6). The word ‘biodiversity’ hardly appears; ‘species and ecosystems’ was the terminology at the time. The chapter draws a gloomy picture of the extinction of species and discusses how to reverse the trend. As the title of the chapter indicates, it sees the need for protection of species not only as an ‘environmental protection’ issue. It is also a basis for development; there are “economic values at stake”.38 Here we find the “germs” of the UN Convention on Biological Diversity (CBD) and of many of the controversial issues that surrounded the negotiations on that convention. In particular, there is a discussion of whether biological and genetic resources are subject to national sovereignty or rather should be seen as a common resource of mankind and thus subject to some international management. The Commission explicitly describes the concept of species and genetic variability as a ‘common heritage’. However, it adds, Collective responsibility for the common heritage would not mean collective international rights to particular resources within nations. This approach need not interfere with concepts of national sovereignty. But it would mean that individual nations would no longer be left to rely on their own isolated efforts to protect species within their borders.39

The core issue here is that of access to genetic resources and the sharing of benefits from the protection of species that may turn out to be of value. The Commission underlines that “developing countries must be ensured an equitable share of the economic profit from the use of genes for commercial purposes”. Again, the Commission saw the challenges of conflicting goals and interests quite clearly. Here we easily identify the basic principles which are now explicitly laid down in article 15 of the CBD on access to genetic resources: prior informed consent, mutual agreed terms, and benefit sharing. Also the dilemmas inherent in the need to both protect and exploit biological resources are discussed in “Our Common Future”. This was quite a controversial and difficult issue for the Commission, with a clear North/South dimension. In the end it recommended an international convention be negotiated in this area, but the careful wording on this point clearly illustrates the doubts and discussions in the group: “Governments should investigate the prospects of agreeing to a ‘Species Convention’, similar in spirit and scope to the Law of the 38

P. 155.

39

P. 162.

13

sustainable development in international and national law

Sea treaty and other international conventions reflecting principles of ‘universal resources’.”40 Nevertheless, with these words it in fact started a process which resulted in the CBD 5 years later. The Commission was fully aware of the need to assist developing countries in this field: Such a Convention would need to be supported by a financial arrangement that would have the active backing of the community of nations. Any such arrangement, and there are several possibilities, must not only seek to ensure the conservation of genetic resources for all people, but assure that the nations that possess many of these resources obtain an equitable share of the benefits and earnings derived from their development . 41

Here the Commission presents fundamental ideas concerning the relationship between rich and poor countries in environmental protection that later developed into the principle of common but differentiated responsibilities – without that term being used. It is interesting to see the link drawn by the Commission between that principle and the concept of common heritage of mankind.



3.5 Energy

The probably most foresighted chapter of “Our Common Future” is that on “Energy: Choices for Environment and Development“ (chapter 7). Here the enormous double challenge of meeting the need for much more energy for economic development in developing countries and avoiding climate change is addressed. The Commission provides an up to the minute appraisal of the climate issue. There had certainly been talk of the possibility of global warming for some time. But the report was the first international document of its kind to describe it as a serious problem and challenge. It stated clearly that the world’s dependency of fossil fuels is unsustainable. Rapidly growing needs for energy in the poor parts of the world cannot be met just by burning ever larger quantities of fossil fuel. Based on the most recent scientific forecasts, it warned of “a rise in globally averaged surface temperatures, for an effective CO2 doubling, of somewhere between 1.5 and 4.5 degrees C” within 2030, and that “warming [could become] more pronounced at higher latitudes during winter than at the equator”. 42 Many of the severe consequences which have been debated for two decades and now seem fully accepted scientifically are actually described in the report. And it adds: “There is no way to prove that any of this will happen until it actually 40 41

Ibid.

Ibid.

42

P. 176. This was mainly based on conclusions and recommendations from a scientific meeting organized by the World Meteorological Organization (WMO); United Nations Environment Program (UNEP) and the International Council for Scientific Unions (ICSU) in Villach, Austria in October 1985.

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occurs. The key question is: How much certainty should governments require before agreeing to take action?” Here the Commission raises the issue of precaution without using that word, and – again – implicitly recommends the very approach enshrined later as a principle of environmental law: the precautionary principle. And it recommends a global convention on this issue as well. We all know what has happened since then. The chapter analyses the problems facing the world in ensuring enough energy to meet the basic welfare needs of an increasing global population without destroying the environment through global warming and other damaging effects of energy production and consumption. It presents two main scenarios – a high and a low path– of future energy consumption and discusses ways of meeting the need for various forms of energy, taking into account the environmental impact of each of them. It strongly recommends transfer to renewables, energy efficiency and energy conservation as the necessary paths to a sustainable energy future. Nuclear energy was a very controversial issue in the Commission, not least because of the April 1986 accident at Chernobyl. In the end a compromise conclusion was reached, with a text as follows: The generation of nuclear power is only justifiable if there are solid solutions to the presently unsolved problems to which it gives rise. The highest priority must be accorded to research and development on environmentally sound and economically viable alternatives, as well as on means of increasing the safety of nuclear energy. 43

However, the “bottom line” of the chapter on energy is that there is at present no realistic solution to the double problem we face. A generally acceptable pathway to a safe and sustainable energy future has not yet been found. We do not believe that these dilemmas have yet been addressed by the international community with a sufficient sense of urgency. 44

The outlook is dark, requiring fundamental changes in both lifestyle and technology. The chapter concludes: A safe, environmentally sound, and economically viable energy pathway that will sustain human progress into the distant future is clearly imperative. It is also possible. But it will require new dimensions of political will and institutional cooperation to achieve it. 45

43

P. 189.

44 45

P. 169.

P. 202.

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sustainable development in international and national law



3.6 Industry

One chapter (chapter 8), called “Industry: Producing More with Less”, treats the impact of industrial growth. It stresses the need for increased production “to meet the needs”. At the same time, it urges, the technology of industrial production must change fundamentally in order to reduce the use of energy and other resources, and environmental pollution. As far as industrialization in developing countries is concerned, the Commission’s clear warning to developing countries is remarkable. They are advised to adopt up to date measures to control pollution and waste. They do not have the resources, the Commission says, “to industrialize now and repair the damage later”. 46 Nor do they have the time, given the rapid pace of technological progress. “And they can learn from the mistakes of developed countries”. 47 As already mentioned, the Commission thus urges developing countries to “leapfrog” in their industrial development; apply the best available technology from the beginning. But this is combined with a recommendation to strengthen international assistance – technical, financial, and institutional – to help the developing countries set an environmentally sound and sustainable course of industrial development. 48



3.7 Urban Issues, International Commons, and Peace and Security

One chapter deals with “The Urban Challenge“ (chapter 9), describing the rapid urbanization in the world, in particular in developing countries, and the huge challenges this poses for national and local authorities. Of greater legal relevance is the chapter on “Managing the Commons” (chapter 10), in particular the oceans and marine resources. Describing in positive terms the many existing regional and global conventions aiming at the protection of the marine environment, it nevertheless stresses the need for urgent actions and proposes a series of measures to • strengthen capacity for national action, especially in developing countries; • improve fisheries management; • reinforce co-operation in semi-enclosed and regional seas; • strengthen control of ocean disposal of hazardous and nuclear wastes; and • advance the Law of the Sea. 49 The chapter on peace and security in the light of development and the environment (chapter 11) also makes very interesting reading today. Here the 46 47

P. 215.

Ibid.

48

P. 235.

49

P. 265.

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Commission in clear terms describes environmental problems as a threat to international security, and – from the other direction – conflict as a cause of unsustainable development. But as we now know, it was almost exactly 20 years to the day the Brundtland report was launched – April 17, 2007 – before the UN Security Council discussed the environmental crisis as a security issue.



4 Proposals for Institutional and Legal Change

The title of the final chapter is “Towards Common Action: Proposals for Institutional and Legal Change”. Here we approach the core of the issues discussed in this book. A scarlet thread here is the need for integration of environmental concerns into the mandate and policies of cabinets and legislative committees that deal with economic policy and planning, as well as those dealing with sector and international policies.50 All such agencies should be made “directly responsible and fully accountable for ensuring that their policies, programmes, and budgets support development that is ecologically as well as economically sustainable.”51 It is not solely up to the minister of the environment to solve the environmental problems. As Gro Harlem Brundtland once said, the task of environment ministers is often about repairing the damage caused by the policies of their colleagues.52 The report conveys a strong message on this point in the section called “Getting at the Sources”. As far as the role of law is concerned, the Commission strongly underlines the importance of legal reform at both national and international level. The need to develop the law to meet the challenges is in fact mentioned in the book’s introductory chapter on sustainable development, where the Commission states: Some necessary changes in the legal framework start from the proposition that an environment adequate for health and well-being is essential for all human beings – including future generations. Such a view places the right to use public and private resources in its proper social context and provides a goal for more specific measures.53

Furthermore, as has been shown, many parts of the report inspired and anticipated subsequent international and national law, most notably in the areas of climate change and protection of biodiversity. But what are its views and proposals in the legal field, in a stricter sense of the word? What does it actually say about the role of law and the need for a “new deal” in the legal sphere? 50 51

P. 314.

Ibid.

52 53

MacNeill 2006, p. 14.

P. 63.

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sustainable development in international and national law

Early in the Commission’s work a group of international legal experts was convened, which included environmental lawyers of international stature. This group presented a document of “Legal Principles for Environmental Protection and Sustainable Development”. Although rather general in wording, it contains many clear and important principles – many of which are reflected in later documents such as the Rio Declaration. The first of these principles is that “All human beings have the fundamental right to an environment adequate for their health and well-being”. This is followed by the principle of inter-generational equity: “States shall conserve and use the environment and natural resources for the benefit of present and future generations”. It also lays down very clearly, in Principle 3, the obligations for states to protect the environment: States shall maintain ecosystems and ecological processes essential for the functioning of the biosphere, shall preserve biological diversity, and shall observe the principle of optimum sustainable yield in the use of living natural resources and ecosystems.

The proposal as such was not thoroughly discussed by the Commission, nor was it formally approved.54 Apparently, it raised too many difficult and controversial issues such as the possible legal status of such principles, the legal meaning of “right” to an adequate environment, etc. Instead, the Commission chose to present “Summary of proposed legal principles” as an annex to the report. But it went a long way to endorse the general ideas of the principles and give them moral backing. The Commission urged the UN to take them as a basis for further work towards a Universal Declaration and a Convention on Environmental Protection and Sustainable Development. It even prescribed in detail the process of such a work.55 It urges states to recognize clear responsibilities for ensuring an adequate environment for present and future generations. Not least, it recommends the acknowledgement of procedural environmental rights, rights of individuals to know of and access information on the state of the environment; the right to be consulted and participate in decision making on activities likely to have a significant effect on the environment; and the right to legal remedies and redress for those whose health or environment has been or may be seriously affected. So, the basic structure of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the “Aarhus Convention”) was laid down in “Our Common Future”. It further lists a number of responsibilities states have towards their own citizens and other states. It stresses the wide variety of national legal systems which

54 55

P. 333.

Ibid.

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“[make] it impossible to propose an approach that would be valid everywhere”.56 But, as mentioned, it goes as far as to recommend the General Assembly of the UN to prepare first a Universal Declaration and later a Convention on environmental protection and sustainable development.. The Commission clearly saw the strengthening of international environmental law as a very important instrument for sustainable development. Governments should accelerate their efforts to strengthen and extend existing and more specific international conventions, and set up new institutions for dispute settlement in the field of environment. It even prescribes a system of binding dispute settlement procedures. Added to all this is the recommendation to the UN to transform the report into a UN Action Programme on Sustainable Development, which eventually became Agenda 21, and to convene an international conference to review progress – that came to fruition with the Rio Conference.



5 Summing up: Back to the Principle of Sustainable Development

Since 1987 ‘sustainable development’ has been subject to an incredible number of discussions, analyses, explanations, and not least criticisms. It has initiated debate and research in natural science, political science, economics, philosophy and law. It has been embraced by some and heavily criticized by others in both the environmental and pro-growth communities. The main criticism is the vagueness of the concept, expressed in such terms as ‘there is really no substance’ or ‘everyone can agree because it can be understood in so many ways’. Some see it as a contradiction: If economic growth is the cause of the problems – how can more growth be the cure? Of course, these comments are all partly true. But in my view, much of the criticism simply underestimates the care and thoughtfulness with which the Commission treats the issue. The Commission was very conscious in its elaborations on the principle. It should be broad, embracing several basic values often perceived as conflicting. It should bring together the dual objective of economic growth for poverty alleviation, and environmental protection. It was also a conscious tactic to come out on a positive note in order to encourage all important constituencies to come “on board”, governments in North and South, East and West, and, not least, labour and the business community in general. The Commission itself knew that it had not solved every single problem, and that the concept of sustainable development, viewed up close, had its weaknesses. It says,

56

P. 331.

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We are not forecasting a future; we are serving a notice – an urgent notice based on the latest and best scientific evidence – that the time has come to take the decisions needed to secure the resources to sustain this and coming generations. We do not offer a detailed blueprint for action, but instead a pathway by which the peoples of the world may enlarge their spheres of co-operation.57

If you study the report and see how the Commission develops its analyses and thinking, there are in my view four “core elements” of the principle on which to build both policy and law. Simply put these are: • social equity and justice; meeting basic needs for all; • integration of environmental considerations into all aspects of economic and social development; • an absolute prohibition to destroy the environment and natural resources on which future generations’ life and welfare depends; • a long term view in decision-making. My personal view is, furthermore, that these four elements or dimensions of sustainable development are sufficiently clear and “operational” to act as a meaningful basis for real, precise and effective legal rules. True, the principle of sustainable development is vague, but it is not too vague to be legally relevant and useful. The task of making the principle “operational” in the sense of legal applicability is challenging, but not impossible. The enormous amount of national and international legal documents that was inspired by the concept since 1987 is witness thereof. But the ultimate question is what effect the legal instruments and expressions actually have. Is global development more or less sustainable today than it was before 1987? One thing is clear: present developments are definitely not sustainable. So, our next question is: What can we do to make law an even more important and effective instrument for the urgent changes on which – in the Commission’s own word – “the security, well-being, and the very survival of the planet depend." The aim of this book is to make a contribution to that task.

57

P. 1-2.

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Bibliography WCED 1987 The World Commission on Environment and Development: Our Common Future, Oxford, Oxford University Press 1987.

MacNeill 2006 MacNeill, J. The Forgotten Imperative of Sustainable Development in Green Law, Journal of the Pace Environmental Law Programs, vol. 10 no. 1, fall 2006, p. 1, 2 and 14.

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A Fundament and Two Pillars The Concept of Sustainable Development 20 Years after the Brundtland Report Gerd Winter

chapter 1.2

a fundament and two pillars



1 The Report

The World Commission on Environment and Development (WCED), also known as the “Brundtland Commission” after the name of its chair, presented its report on “Our Common Future” in 1987. The work of the Commission was intense and controversial, yet the final text was adopted unanimously. Its central message was encapsulated in the term “sustainable development,” understood as the use of natural resources in a manner “that meets the needs of the present without compromising the ability of future generation to meet their own needs” (Report 2, 1). The report ends with a dramatic appeal for urgency: “We are unanimous in our conviction that the security, well-being, and very survival of the planet depend on such changes, now” (12, 126). Twenty years have since passed. This is an excellent opportunity to see which trajectory the concept of sustainability has taken over the years. In doing so, I concentrate on conceptualisations within the politico-legal field. My thesis is that the principle of sustainability has been padded out, drained of sense and, hence, disarmed. A renewed reading of the WCED Report suggests that the scope of the principle has to be defined more narrowly. Only if it can bite would it make sense to establish it as a principle or even rule of law. In its catch all shape it will rather be misused for greenwashing unsustainable practices.



2 The Three-pillar Concept of Sustainability

Since the publication of the WCED Report a three-pillar concept has emerged and been agreed upon by almost any official document addressing the issue.  A major step in this direction was taken by the UN Conference on Environment and Development (UNCED) of 1992 with its bridging the gap between developmental needs and environmental protection. Many more international and national declarations have propagated the concept. For instance, the WTO Ministerial Declaration of Doha of 2001 states on the relationship between trade, development and environment:

* 

Gerd Winter is Professor at the University of Bremen, Germany.

For the genesis of the Report, see H.-Chr. Bugge’s contribution in this volume.



The first number refers to the relevant chapter, the second to the paragraph within a chapter of the WCED Report.



This implies that I focus on statements by publicly legitimized bodies and leave aside the excessive literature dealing with the topic. References to the WCED Report can be found in parentheses and refer to its chapters and paragraphs.



For an account of the semantic development of the concept see Cordonier Segger and Khalfan 2004, pp. 15-50; Voigt 2006.

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We are convinced that the aims of upholding and safeguarding an open and non-discriminatory multilateral trading system, and acting for the protection of the environment and the promotion of sustainable development can and must be mutually supportive.

The Johannesburg Plan of Implementation of 2002 framed the principle as follows: These efforts will also promote the integration of the three components of sustainable development — economic development, social development and environmental protection — as interdependent and mutually reinforcing pillars. Poverty eradication, changing unsustainable patterns of production and consumption and protecting and managing the natural resource base of economic and social development are overarching objectives of, and essential requirements for, sustainable development.

In the definition of the “German Council for Sustainable Development,” sustainability means to equally consider environmental, social and economic aspects. Thus, futureoriented management means: We have to leave our children and grandchildren an intact ecological, social and economic system. The one cannot be achieved without the other!

In very different wordings, this concept has occasionally found its way into law. For instance, the preamble of the WTO agreement designs the following (somewhat intricate) scale: Recognizing that their relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development. (My emphasis)

Another attempt to ponder the different interests is contained in Article 2 EC Treaty:



http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm.



http://www.un.org/esa/sustdev/documents/WSSD_POI_PD/English/POIToc.htm.

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The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Articles 3 and 4, to promote throughout the Community a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection, equality between men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States. (My emphasis)

It can also be encountered in some EC secondary legislation, such as fisheries law: The objective of the Common Fisheries Policy should therefore be to provide for sustainable exploitation of living aquatic resources and of aquaculture in the context of sustainable development, taking account of the environmental, economic and social aspects in a balanced manner. (My emphasis)

Although not always clearly cut, “sustainable development” in these statements is the generic term for a long number of single concerns which however can be assembled as three overall concerns: social welfare, economy, and environment. It is true, the three pillars concept has challenged environmentally indolent sectoral laws and policies to take account of environmental implications. However, “to add colour, texture and shading to our interpretation” of the law is a far cry from the existential connotation of “sustainability”. In the version of the Brundtland Commission and scholars who have strengthened this aspect in the aftermath, “sustainable development” means that socio-economic development remains “sustained,” i.e. bearable, supported by its basis, the biosphere.10 Thus the biosphere becomes of “fundamental” importance. Economy and society are the weaker partners, as the biosphere can exist without humans, but humans certainly cannot without the biosphere. Therefore, humans, while exploiting nature, have to respect its limitations, a need they are able to fulfill, as they possess the potential of reason and hence of pondering alternative patterns of behavior. The appropriate picture is therefore not three pillars but rather a fundament and two pillars standing on it. 

Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries, OJ L 358, p. 59.



See the often cited remark of the WTO Appellate Body in United States – Import Prohibition of Certain Shrimp and Shrimp Products of 6 November 1998, WTO Doc WT/DS58/AB/R, at No 153.



As, notably, Daly 1996. See for an overview Voigt 2006, pp. 59-88.

10

In German “sustainable“ is translated by “nachhaltig“ or “dauerhaft“. These words do not adequately reflect the bearing. Instead they stress the time dimension, i.e. that something (humans, the economy, etc.) shall persist or endure.

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In contrast, in its three-pillar version the term “sustainable” Future Generations loses its reference to this material basis and merely means that the three aspects shall coexist as equivalent entities. In the case of conflict, they shall be balanced, Economy Society mutual consideration must be taken and compromise found. However, as the biosphere (although objectively flexible to a certain extent) cannot reflect on itself and its relationship with humans, as it is reckless and uncompromising, the threeNatural Resources pillar concept leads easily to mock compromises. Sacrifices of nature, as commanded by prevailing short term economic or social interests, may become destructive for economy and society in the long. Let us take an example: Fishing quotas set annually by the EC Council are regularly larger than the reproduction rate of certain fish species. The Council usually justifies this by referring to the safeguard of jobs and food security. This argumentation is quite compatible with the three-pillar concept, because a compromise was drawn between human economy (the fisheries sector), social welfare (supply of fish to consumers) and natural resources (fish stock). However, it can also entail the collapse of entire fish populations. Such short-term compromise could avenge itself on humans in the long run as food supplies shrink and jobs are lost. A second example: In relation to third world development policies the three-pillar concept would permit action according to the slogan “economy first, environment later” if politics decide that economic development is more important. Water, soil, the atmosphere and biodiversity could fall prey to such priority choices. Nature will not mind, because it does not have a mind. But against all compromise it will simply refuse to provide the resources any further. In the long run, it will rob the two other pillars of developing countries of their fundament. Advocates of the three pillar concept might react by stressing that far from striving for short term compromises it seeks long lasting arrangements, and would therefore not subscribe to short-term gains with long-term damages. They might propound that rules of respecting nature as a fundament must be developed. This is commendable, but then the concept merges into “strong sustainability,” which will be discussed later.

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a fundament and two pillars

3 The Concept of Future-proof Politics

At even greater distance to the notion of the biosphere’s bearing capacity stands another increasingly common concept of sustainable development that can be termed the concept of “future-proof politics” (zukunftsfähige Politik). Accordingly, sustainable development stands for the postulate that each and every policy has to be oriented towards protecting the needs of future generations. The German Federal Government has embraced this concept especially, and laid down ten management rules for sustainability, which it introduces as follows: Every generation must solve its own problems rather than passing them on to the next generation. At the same time it must make provision for foreseeable future problems. This applies to conserving the natural resource base on which life depends, to economic development and to social cohesion and demographic change.11

In view of future generations, for instance, not only must natural resources be preserved but the national debt kept under tight control, pension provisions shall be oriented towards personal responsibility, education improved, the family promoted as core socialization institution, etc.12 On the international level the Johannesburg Implementation Plan also contains formulations which take sustainability as a cover for all kinds of desirable policies: Continue to promote open, equitable, rules-based, predictable and non-discriminatory multilateral trading and financial systems that benefit all countries in the pursuit of sustainable development.13

Fortunately, in its practical work the UN Commission on Sustainable Development, which was set up to monitor sustainable policies, does not embrace this limit-less concept but rather adopts the three pillar version.14 The EU Treaty too leaves environmental concerns behind in its use of the term sustainable development. In Art. 2 the first objective of the Union is stated as 11

http://www.bundesregierung.de/Content/DE/StatischeSeiten/Breg/ThemenAZ/nachhaltigkeit-200704-13-die-10-managementregeln-der-nachhaltigkeit.html.

12

German Federal Government, Perspektiven für Deutschland: Unsere Strategie für eine nachhaltige Entwicklung. (2002) http://www.bundesregierung.de/Content/DE/StatischeSeiten/Breg/ThemenAZ/nachhaltigkeit-2006-07-27-die-nationale-nachhaltigkeitsstrategie.html.

13

Chapter V No. 47 a).

14

See the Commission’s website http://www.environment.gov.au/commitments/uncsd/index.html.

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to promote economic and social progress and a high level of employment and to achieve balanced and sustainable development, in particular through the creation of an area without internal frontiers, through the strengthening of economic and social cohesion and through the establishment of economic and monetary union, ultimately including a single currency in accordance with the provisions of this Treaty.

It is characteristic of this variant of sustainability that it includes policy areas beyond environmental policies. Though just as in the three pillar concept (as well as, of course, in the WCED notion), the common framework is the concern for future generations, those definitions do not challenge the environmental dimension of policies. A vague term such as sustainability can certainly be defined differently, but if it is solely and very generally oriented towards future-proofing of policies, it becomes a mere platitude. In the past, governments worried about the future of society as well. To capture this fact in the present with the term sustainability has the side effect of stripping it of its original sharpness, clarity and effectiveness. By contrast, the three-pillar concept at least aims at bridging society, economy and nature, by suggesting a balance between the three different interests. But by misjudging the actual larger weight of nature, it propagates the equivalence of all three pillars, which leads it to elude conceptual work giving nature its proper weight.



4 The WCED Version

It is exactly this work that has been carried out by the Brundtland Commission. Now let us engage with its substantial ideas, and those problems it left open. In the report, the distinction surfaces again and again between, on the one hand, the material level of the exchange between society and nature and, on the other, the level of societal reflection about nature. I will deal with both successively.



4.1 The Level of Material Exchange Between Society and Nature

For the material level, the Commission sets up the following principles: • in general, renewable resources like forests and fish stocks need not be depleted provided the rate of use is within the limits of regeneration and natural growth, (Report 2, 11); • as for non-renewable resources, like fossil fuels and minerals, [...] the rate

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of depletion should take into account the criticality of that resource, the availability of technologies for minimizing depletion, and the likelihood of substitutes being available, (Report 2, 12); • t he raw materials and energy of production processes are only partly converted to useful products. The rest comes out as wastes. Sustainable development requires that the adverse impacts on the quality of air, water, and other natural elements are minimized so as to sustain the ecosystem's overall integrity.(Report 2, 14) In sum and somewhat more precisely, these so-called rules of strong sustainability say that renewable resources shall not be used beyond the reproduction rate, nonrenewable resources shall be managed economically and be replaced by renewable ones, and the absorption capacity of environmental media for pollutants shall not be exceeded. These rules have been and still are the subject of lively debate; two aspects of which shall be emphasized here.15 One concerns the replaceability of natural resources, or, according to the relevant discourse, natural capital. A position, termed as weak sustainability, stresses that natural capital can be replaced with real capital (in particular technology) and with financial capital (with which resources can be bought). The weakness of this viewpoint is obvious: Humans cannot reconstruct the biosphere by technical means; under social aspects indemnification is usually inferior; financial capital can lose its value and is of no use if there is nothing left to buy.16 Limited substitutions are, however, acceptable.17 The second aspect illuminates the Brundtland version’s limiting of resources to the material basis which disregards the regulatory and cultural functions of nature. This is remedied by the idea of ecosystem-services as expounded in the Millennium Ecosystem Assessment.18 In this view besides material services – the “supporting services” such as nutrient cycling and soil formation and the “provisioning services” such as the supply of food and water- “regulatory services” such as climate, flood and disease regulation are revealed as well as “cultural services” such as the provisioning of aesthetic, spiritual, educational and recreational values.

15

Cf. especially Rat von Sachverständigen für Umweltfragen 2002, ch. 1.3.1.1.

16

The example of the island Nauru is well known. Phosphate mining, the revenue of which was invested on the financial market, destroyed 80 percent of its land area. This guarantees inhabitants a relatively high income, but the remaining agricultural land surface does not feed them. Alcoholism and diabetes are rampant. The financial resources are not immune to capital market crises.

17

See in summary Ott/ Döhring, 2004, pp. 101-38.

18

Millennium Ecosystem Assessment 2005. See figure below.

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Interdependencies between ecosystem-services and social welfare (Millennium Ecosystem Assessment, Ecosystems and Human Well-being: Synthesis, Washington, DC: Island Press 2005, p. VI):



4.2 The Level of Societal Reflection and Regulation

Apart from the above outline of the reality of the exchange between nature and society, the Brundtland Commission sets up rules for the self-reflection of society and its relationship to the biosphere. It demands such reflections from enterprises, consumers and state institutions alike. Reflecting their nature consumption for enterprises means to at least plumb win-win-chances. Thus, it is stated under the heading “produce more with less” (ch. 8): Those companies that did respond innovatively are today often in the forefront of their industry. They have developed new products, new processes, and entire plants that use less water, energy, and other resources per unit of output and are hence more economic and competitive. (Report 12, 98)

Regarding consumers, the Commission urges them to reflect on their needs: Perceived needs are socially and culturally determined, and sustainable development requires the promotion of values that encourage consumption standards that are within the bounds of the ecologically possible and to which all can reasonably aspire. (2, 5)

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This is accompanied by a turn from quantitative to qualitative thinking: Sustainability requires views of human needs and well-being that incorporate such non-economic variables as education and health enjoyed for their own sake, clean air and water, and the protection of natural beauty. (2, 39)

The Commission thus declines claims often heard later that there is no need for consumers to curb aspirations because more eco-efficient technology will make up for any growth in consumption. It does not elaborate on questions of consumer abstention but sets a ground for further discussion: that consumers will have to reduce their ambitions, but also that there is now more qualitative and thus better satisfaction to be won from confinement. The Commission reminds state institutions in particular to reflect on their relation to nature: The ability to anticipate and prevent environmental damage requires that the ecological dimensions of policy be considered at the same time as the economic, trade, energy, agricultural, and other dimensions. They should be considered on the same agendas and in the same national and international institutions. (Overview No. 38)

Regarding national accounting, it pushes for the comprehensive inclusion of nature consumption into cost calculation (2,36). The process of economic development must be more soundly based upon the realities of the stock of capital that sustains it. This is rarely done in either developed or countries of the global South. For example, income from forestry operations is conventionally measured in terms of the value of timber and other products extracted, minus the costs of extraction. The costs of regenerating the forest are not taken into account, unless money is actually spent on such work. Thus figuring profits from logging rarely takes full account of the losses in future revenue incurred through degradation of the forest. Similar incomplete accounting occurs in the exploitation of other natural resources, especially in the case of resources that are not capitalized in enterprise or national accounts: Air, water, and soil. In all countries, rich or poor, economic development must take full account in its measurements of growth of the improvement or deterioration in the stock of natural resources. (2, 36)

Once more, by directing state institutions towards the integration principle the Commission touches a fundamental point. Integration in this sense is not just a general cheap claim that every concern must be reflected by any other concern. Rather, it challenges precisely those policies which have hitherto been regarded as environmentally neutral, as e.g. taxation, budget and lending policies, trans-

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portation policies, product harmonization policies, company law, competition law, etc.



4.3 The Relationship Between Industrial and Developing Countries

The two-sided approach – the circularity of material flows and the integration at the level of reflection – applies, according to the Commission, not only to industrialized, but also to developing countries. This shows the way out of two dead ends, i.e. the overexploitation of environmental resources by poverty and hardship, obvious in the example of overgrazing, on the one hand, and inconsiderate growth in some transition countries, on the other hand. At the same time, a specific responsibility of the industrialized countries is suggested – an early trace of the principle of a common, yet differentiated responsibility, which today appears in treaties under international law and stands at the threshold to a new customary law rule. On the one hand, industrialized countries were to take special responsibility due to their high consumption of resources, on the other hand, they would have to support development through investment assistance, the opening of markets and the transfer of technology. The Brundtland Report already laid out many substantial elements for a world agenda of sustainable development. In contrast, the three-pillar concept with its hollow orientation towards compromise and the concept of future-proof politics with its disintegration of the relation between people and nature represents a step backward. However, the report evades two central problems, which are still not solved satisfyingly: The problem of scaling and the problem of juridification. I will discuss them in turn.



5 The Open Question of Scale

If it is to be determined, from what point on the regeneration or absorption capacity of a resource (or, in the terminology of the Millennium Assessment Report, the preservation of an ecosystem service) is under threat, the level of analysis comes into view. Should the individual be preserved, or the population, the species, the ecosystem or merely the biosphere as a general framework? The Brundtland Report distinguishes between important and less important elements of nature. It advocates the absolute imperative of preserving species: The loss of plant and animal species can greatly limit the options of future generations: so sustainable development requires the conservation of plant and animal species. (2, 13)

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In contrast, geographically recurring units – individuals, populations and habitats – must perhaps yield to economic or social priorities: Economic growth and development obviously involve changes in the physical ecosystems. Every ecosystem everywhere cannot be preserved intact. A forest may be depleted in one part of a watershed and extended elsewhere, which is not a bad thing if the exploitation has been planned and the effects on soil erosion rates, water regimes, and genetic losses have been taken into account. [...] most renewable resources are part of a complex and interlinked ecosystem, and maximum sustainable yield must be defined after taking into account system-wide effects of exploitation. (2, 11)

It remains unresolved, however, how the threshold for absolute protection should be defined, concerning the number and geographical distribution of individuals, populations and habitats. It is also unresolved under which conditions individual ecosystems, say a horn-beam forest, an estuary or heath should be preserved or allowed to be destroyed or turned into a different ecosystem.19 Unquestionably, there has to be a threshold, one which lies lower for individual than for all specimens of the habitat type, but what number of remaining individuals indicates the threat of extinction of the type? Still more complicated is where such a threshold is to be found for the maintenance of the regulatory and cultural services of nature.20 Looking at criteria to mark thresholds, the traditional approach in relation to biodiversity has been the rarity of species or ecosystems as related to the past, the national territory of states and specified biogeographical regions. This is the approach taken by the EC Directives constituting the EU wide network of protected habitats called Natura 2000.21 Provided the relative value of species and habitats has been determined and scaled, this must be juxtaposed with criteria of allowable sacrifices for the sake of economic or social welfare goals. The economic or social benefit drawn from such sacrifices must itself be scaled in order to reflect the corresponding difference of value of the species or habitat adversely affected. This means that jobs may be lost and industrial installations disallowed if the natural asset encroached upon is deemed the more valuable.

19

See further on this issue WBGU 1999.

20

The German Scientific Advisory Committee on Global Environmental Change (WBGU) suggests that “from a systemic point of view, a categorical ban has to apply to all human interventions where global closed loops are demonstrably at risk”, see WBGU 1999, p. 41 (p. 27 in the English version), yet without specifying any thresholds (see Ott/Döring 2004, p. 148).

21

See Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, Art. 1 lit. c) by which natural habitat types of Community interest are defined, and Annex III which lists the criteria of selection of sites.

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In the EC Natura 2000 scheme, two steps are established of this kind: imperative reasons of overriding public interest, including those of a social or economic nature, as a first level, and overriding public interest confined to considerations relating to human health or public safety and to beneficial consequences for the environment as a second. In any case, less intrusive alternatives must be considered. If the sacrifice of natural assets proves to be unavoidable and legitimized by overriding interests, compensation measures must be taken in order to ensure the overall coherence of the Natura 2000 network. The overall structure of this approach is a double scale of corresponding interests of nature and society. In Germany this structure of balancing nature and societal needs is extended to “normal,” i.e. not endangered species and habitats. Starting from the judgment that in an industrialized country such as Germany any natural site is worth protecting, a balancing scheme was enacted which very much resembles the EC scheme. By starting with a priority of preserving any part of nature and thus shifting the burden of justification onto human encroachment, the German scheme, unlike the EC´s, assumes that the present state of nature exploitation is so advanced as to effectively rule out more intrusion or at least enact compensation. Taking the German and European schemes together, the overall balancing structure is as follows: Concerning “normal” nature, the so-called German encroachment scheme (“Eingriffsregelung”)22 requires detrimental activities (“Eingriffe”23) 1) preferably to be avoided; 2) if unavoidable, to be compensated by restoration measures nearby, 3) or replaced by restoration measures at other sites; and 4) if neither avoidable nor restorable, the detrimental activity must be weighed against all claims on nature and landscape; 5) if the activity is found more important, monetary compensation has to be made which must be spent on nature conservation measures of undetermined kinds. Concerning more valuable nature, EC law,24 as transposed by MS law, sets up the following equation: 1) in Natura 2000 sites no adverse effect to the integrity of the site is allowed; 2) projects inducing such effects can however be permitted in exceptional cases: 22 23

Art. 19 of the German Federal Nature Conservation Act (BNatSchG).

“Eingriffe” are in § 18 BNatSchG defined as “changes to the shape and appearance or utilization of land or changes to the groundwater table with its close correlations to inhabited soil compartments, that may significantly impair the ecosystem, or the natural scenery.”

24

Art. 6 paras 3-6 Directive 92/43/EEC.

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a) if rare species and habitat types are concerned, a project must rest in a compelling public interest that cannot be satisfied by alternative, less intervening measures. Given this case, compensation has to be provided for, which works to maintain the general coherence of the network Natura 2000; b) if prioritized threatened species and habitats are concerned, the requirements are insofar tighter as only health and environmental protection provide justification for a project, excluding social and economic public interests. The latter concerns may however be taken into consideration, if the Commission renders an affirmative opinion in this respect. These scales can serve as an example of rules of sustainable development which ensure the preservation of basic functions of nature on the one side and allow for differentiated encroachments on the other. A more modern version would probably enrich these criteria by the regulatory functions of species and habitats within overarching ecosystems as well as by their cultural contributions. Rules of this kind have also been developed for other ecosystem services. For instance quality objectives for air, water and soil pollution can be regarded as thresholds for the sustainable use of the capacity of air, water and soil to degrade substances. Still, they are less sophisticated than the habitat preservation rules because they do not involve the scaling of the relative importance of natural resources and the relationing with scales of importance of human uses. For many other services however, including, notably, the climate system, science based rules of sustainable use are still lacking in toto.25



6 The Open Question of Juridification



6.1 Contributions of WCED

The WCED Report also leaves open how the concept of sustainable development should be turned from policy into binding law. A working group of environmental law experts of the Commission had unanimously agreed to a catalogue of fundamental individual rights and state obligations, including the right of the individual to appropriate environmental conditions: All human beings have the fundamental right to an environment adequate for their health and well being (Report Annex I, Nr. 1)

25

The climate gas reduction targets of the Kyoto Protocol, for instance, were a result of political bargaining rather than scientific study of what the climate system can absorb. See Oberthuer and Ott 1999, pp. 115121.

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as well as a variant of international responsibility, which moves the current state of the international common law towards the notion of precaution: States shall take all reasonable precautionary measures to limit the risk when carrying out or permitting certain dangerous but beneficial activities and shall ensure that compensation is provided should substantial transboundary harm occur even when the activities were not known to be harmful at the time they were undertaken. (Report Annex I, Nr. 11)

The Commission could not agree on the catalogue of the working group. It nevertheless states generally that it is intolerable having the law drag behind actual environmental degradation: National and international law has traditionally lagged behind events. Today, legal regimes are being rapidly outdistanced by the accelerating pace and expanding scale of impacts on the environmental base of development. Human laws must be reformulated to keep human activities in harmony with the unchanging and universal laws of nature. (12, 80)

The WCED stresses again the principle of integration as the guiding principle for state action and the necessity for better development co-operation. It advocates a juridification of the protection of the natural livelihood within and between states. The Commission leaves the methods for this enterprise, however, to individual legal cultures: It is recommended that governments take appropriate steps to recognize these reciprocal rights and responsibilities. However, the wide variation in national legal systems and practices makes it impossible to propose an approach that would be valid everywhere. Some countries have amended their basic laws or constitution; others are considering the option of a special national law or charter setting out the rights and responsibilities of citizens and the state regarding environmental protection and sustainable development. Others may wish to consider the designation of a national council or public representative or ‘ombudsman’ to represent the interests and rights of present and future generations and act as an environmental watchdog, alerting governments and citizens to any emerging threats. (12, 84)

Thus the Commission, although calling for accelerated juridification, leaves it open whether states improve their constitutions or regular legislation, and whether they establish material requirements or procedural safeguards. Not mentioned is international law, although of course also on that level juridification must proceed.

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a fundament and two pillars

6.2 The Terminology of Principles

Before looking at what progress has been made over the 20 years since the WCED’s programmatic call, a methodological remark is appropriate.26 Often, sustainable development is propagated as a principle of a given level of law. Whoever does so should explain what he or she means by “principle”. Drawing on legal philosophical terminology I will understand by principle a general proposition “behind” more concrete rules. Principles help to interpret rules and fill lacunae left by rules. While rules are conclusive, principles are open for relativization by other opposing principles. Legal principles are law, not just policies, concepts or political ideals, which are sometimes also termed principles. Thus legally binding principles should be distinguished from political principles. While (legally binding) principles are normally phrased in broad language the term should not be extended to completely indeterminate elements.27 The very notion of bindingness presupposes that what is binding must be identifiable. Also in social life propositions, if too broadly phrased, do not create legitimate expectations and, from there, bindingness.28 For instance, if a government says that it will take the will of the people seriously, nobody would take this as a binding commitment.



6.3 Levels and Areas of Juridification

Equipped with a range of terms we can now sketch the extent to which sustainable development has been assigned legal value by international and EU law. As for international law some confusion results from the difference between general principles of law in the sense of Art. 38 para 1 lit c) ICJ-Statute and rules of treaty and customary law in the sense of Art. 38 para 1 lit a) and b) ICJ-Statute. Drawing on the philosophical terminology I suggest that all three sources contained in Art. 38 para 1 ICJ-Statute can be either principles or rules in the methodological sense. This means that treaty “rules” (lit. a)) and customary “law” (lit. b)) as well as “principles” (lit. c)) in the statutory sense can be principles or rules in the methodological sense. For instance, a treaty may well contain principles, as it may customary law. Likewise, a general principle of law may well be so conclusive that it has the methodological quality of a rule. A further confusion stems from the common understanding that besides general principles of law in the sense of Art. 38 para 1 lit c) ICJ-Statute there 26 27

See for further explanation Winter 2006, pp. 597-604.

I cannot go into details here. See the related controversy between Paulus 2001, pp. 211-217, who postulates a core meaning of propositions, and Koskenniemi 2005, pp. 590-596 who defends the constructive potential of indeterminacy.

28

Herberg 2007.

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are general principles of international law. Some scholars juxtapose these two kinds of principles, thus acknowledging the existence of a fourth category of international law, general principles of international law.29 Others categorize the general principles of international law under Art. 38 para 1 lit. c) ICJ-Statute.30 It is not necessary to discuss this here. More important is the fact that many of the relevant scholars and, in fact, some jurisprudence of international courts, share the understanding that general principles of international law can emerge from mere opinion (be it based on legal conscience or political majority) rather than contract and custom.31 Taking this terminology as a basis I believe the proposition of sustainable development can neither be regarded as a principle of international customary law nor as a general principle of law or international law. The most widely accepted definition (the three pillars concept) is just too vague to qualify for legal bindingness.32 Its extreme indeterminacy is the major reason for why the three pillars concept cannot (and I believe should not) become a legal principle or rule, neither as treaty law, nor as customary law, nor as “general principle” in the sense of Art. 38 para 1 lit. c) ICJ-Statute. Even with this indeterminate meaning (or because of that?) the ICJ and other international jurisprudence have by now only spoken of a concept rather than a legal principle.33 Maybe this is fortunate because as a principle it could too easily be misused to greenspeak any decision. Can we say that the more precise meaning of sustainability – stark sustainability in the sense here proposed – is a legal principle or even a legal rule? Undoubtedly it is specific enough to qualify as a legal norm. Yet, it is not widely enough accepted to represent the general opinio iuris required for general principles of (international) law. It is true that “sustainable development” as a term and/or as broken down into three or more incompletely balanced elements can be found in a number of treaties, such as the WTO treaty as well as the EU and EC treaties.34 But even if contracted, such formulations are too wide to become binding law. The maximum legal value they are given is to serve as political guidance. Precisely this is the reason why the said treaties class sustainable development and its elements of balancing as an objective (WTO, EU) or task (EC), not as a rule or principle.35 In contrast to the general notion, area specific formulations of the concept do have attained legal value. In that respect it is advisable to distinguish between two categories of content, precepts on the material exchange between society and nature and precepts on the reflection of society on nature. 29 30 31

Cassese 2005, pp. 64 and 188.

Maurmann 2008.

See Voigt 2006, pp. 211-217.

32

Contrastingly, Voigt 2006, pp. 217-249 sees the indeterminacy of the notion as an advantage which may accelerate its acceptance.

33

Gabcikovo-Nagymaros Case [1997] ICJ Rep. 78, at No. 140. For the discussion of the judgment see Cordonier Segger/Khalfan 2004, pp. 45-50.

34 35

See citations supra chapter 2.

See Frenz and Unnerstall 1999, p. 176 ff.

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1) Material exchange between nature and society Sustainability gains more specific content if it is related to the use of certain resources rather than to the catch all term development. An important example of a more specific formula is the CBD. It proposes the term sustainable use of biodiversity which it defines as follows36: ‘Sustainable use’ means the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations. (My emphases)

It is true that the definition is still rather broad but at least it is more precise than unspecified mutual respect expressed in the three pillar concept. A bit more elaborate is the definition given by the OSPAR Convention37: Recognising that concerted action at national, regional and global levels is essential to prevent and eliminate marine pollution and to achieve sustainable management of the maritime area, that is, the management of human activities in such a manner that the marine ecosystem will continue to sustain the legitimate uses of the sea and will continue to meet the needs of present and future generations. (My emphases)

On the level of the EC treaty an example is provided by Article 174 EC which demands the “prudent and rational utilisation of natural resources”. While these formulations are of a medium level of generality and thus apt to be called principles, even more specific content can be found in sector related secondary EC law. For instance, the EC Regulation on organic production defines a sustainable management system for agriculture as a system that: ii) respects nature’s systems and cycles and sustains and enhances the health of soil, water, plants and animals and the balance between them; iii) contributes to a high level of biological diversity; iv) makes responsible use of energy and the natural resources, such as water, soil, organic matter and air; v) respects high animal welfare standards and in particular meets animals’ species-specific behavioural needs.38

For the exploitation of living resources the already mentioned Fisheries Regulation contains a similarly specific precept which defines sustainable use as: 36 37

Art. 2 CBD.

OSPAR Convention, preamble 2nd consideration.

38

Council Regulation (EC) No 834/2007 of 28 June 2007 on organic production and labeling of organic products and repealing Regulation (EEC) No 2092/91, OJ L 189 p. 1, Art. 2(1).

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the exploitation of a stock in such a way that the future exploitation of the stock will not be prejudiced and that it does not have a negative impact on the marine eco-systems.39

An even more elaborate example is the set of scales on nature protection reconstructed above. Formulations of this specificity are conclusive enough to be regarded as rules rather than mere principles. 2) Reflection of humans on nature In its reference to social reflection, the proposition of sustainability appears as an integration concept, i.e. all actors have to consider the natural resources dimension of every single one of their decisions. I submit that a proposition of environmental integration is sufficiently determinate to qualify for a legally binding principle or even rule provided there is opinio iuris among states or a contractual basis. For lack of wide consensus among states the environmental integration concept is however not yet a general principle of (international) law. Nevertheless, as it is confined to a procedural requirement of decision-making it may more easily win support in the future for it does not bind the substance of decisions. Beyond political decision-making the concept may even be addressed to legal methodology in general. It has the potential of readjusting the very art of legal reasoning. This art has since long been characterized by the balancing of interests at stake in a legal dispute. But usually it had been inner-societal conflicting interests – the poor and the rich, the powerless and the powerful, the South and the North, etc. – that were to be balanced. The concept of environmental integration transcends this inner-societal focus by alerting legal reasoning to conflicts between man and nature. In this sense the WTO Appellate Body´s quest “to add colour, texture and shade to our interpretation” may gain new significance. 40 In terms of international treaty law the integration concept does appear in a few cases. For instance, the CBD obliges the contracting parties to integrate, as far as possible and as appropriate, the conservation and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes and policies.

In more definite terms the concept of integration is codified in Article 6 EC: Environmental protection requirements must be integrated into the definition and implementation of the Community policies and activities referred to in Article 3, in particular with a view to promoting sustainable development. 39

Council Regulation (EC) 2371/2002 Art. 3(e).

40

See above Fn 8.

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In this formulation, integration is not only a programmatic clause but legally binding. 41 It has the rather procedural meaning, which should nevertheless not be underestimated, that each political measure has to give reasons on whether it damages natural resources and whether this could be avoided. As such it is conclusive and cannot be pondered against other competing concerns. Therefore, it is not only a principle but even a rule having the power to override secondary law infringing it.



7 Conclusion

The debate about sustainable development has so often no impact, because it overburdens the term of sustainable development. It strives to cover all elements of good policy, and is thereby at best overtaxed and at worst abused. An indeterminate definition is also unsuitable for the juridification of the concept. Sustainable development can only be cast into law rules if its scope and content is confined and at the same time made more ambitious. Although this may complicate the process of juridification the resulting legal principles and rules will certainly be more effective. The concept should be focused on the exchange between humans and nature, and it should represent the literal meaning of “sustainable”, i.e. a humanity bearable for the biosphere. The adequate metaphor is therefore a fundament and two pillars rather than the common three pillars. For the balancing of the relationship between mankind and nature, the WCED Report has already laid down important considerations pointing into the direction of stark sustainability and environmental reflexivity, which is why it is very worthwhile to be revisited. But still there remains a plethora of points to clarify, like, in particular, the relationing of weights of nature preservation and human uses on different scales. In the course of such concretizations, the construction of law can advance.

41

Krämer 2007, 1-27.

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Bibliography Cassese 2005 Cassese A., International Law, Oxford: OUP 2nd edition 2005

Cordonier Segger/Khalfan 2004. Cordonier Segger M. C. and Khalfan A., Sustainable Development Law: Principles, Practices and Prospects, Oxford: Oxford University Press 2004.

Daly 1996 Daly H.E., Beyond Growth, Boston: Beacon Press 1996.

Frenz/Unnerstall 1999 Frenz W., Unnerstall H., Nachhaltige Entwicklung im Europarecht, Baden-Baden: Nomos 1999.

Herberg 2007 Herberg M., Globalisierung und private Selbstregulierung: Umweltschutz in multinationalen Unternehmen, Frankfurt: Campus Verlag 2007.

Ott/Döhring 2004 Ott K., Döhring R., Theorie und Praxis starker Nachhaltigkeit, Marburg: Metropoli 2004.

Millenium Ecosystem Assesment 2005 Millennium Ecosystem Assessment, Ecosystems and Human Wellbeing: Synthesis, Washington, DC: Island Press 2005.

Koskenniemi 2005 Koskenniemi M., From Apology to Utopia, Cambridge: CUP, Reissue 2005.

Krämer 2007 Krämer L., EC Environmental Law, London: Sweet & Maxwell, 6th edition 2007.

Maurmann 2008 Maurmann D., Rechtsgrundsätze im Völkerrecht. Am Beipiel des Vorsorgeprinzips, Baden-Baden: Nomos 2008.

Oberthür/Ott 1999 Oberthür S. and Ott H., The Kyoto Protocol, Heidelberg: Springer 1999.

Paulus 2001 Paulus A., Die internationale Gemeinschaft im Völkerrecht, Munich: Beck 2001.

Rat von Sachverständigen 2002 Rat von Sachverständigen für Umweltfragen, Für eine neue Vorreiterrolle: Umweltgutachten 2002, Stuttgart: Metzler-Poeschel 2002.

Voigt 2006 Voigt C., Sustainable Development as a Principle of Integration in International Law, PhD Thesis Oslo 2006.

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Winter 2006 Winter G., The Legal Nature of Environmental Principles in International, EU and Exemplary National Law, in: G. Winter (ed.) Multilevel Governance of Global Environmental Change, Cambridge: Cambridge University Press 2006.

WBGU 1999 Wissenschaftlicher Beirat Globale Umweltveränderungen, Welt im Wandel: Umwelt und Ethik, Marburg: Metropolis 1999 (unpublished English translation at http://www.wbgu.de/wbgu_sn1999_engl.pdf).

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chapter 1.3

Theory for Sustainable Development Towards or Against? Staffan Westerlund

chapter 1.3

theory for sustainable development

This paper takes its point of departure in the ongoing overall degradation of the biosphere as witnessed by human population growth, declining biodiversity and the fact that no national environmental control system has achieved a legally secured ecological sustainability and that the international legal system is incoherent. It recognises that human life as well as economies depend on nature and that consequently ecological sustainability is a necessary, but not sufficient, prerequisite for sustainable development. The concept of core problem is fundamental for this paper and it recognises the achievement and maintenance of ecological sustainability as necessary for sustainable development, as a core problem. This puts environmental law in focus. However, most environmental law research the last 35 years has been re-active, mainly studying law as is and as is applied, while the achievement and maintenance of ecological sustainability call for pro-active research aiming at solving global and regional sustainability problems. The answer to the overall question posed in the title of the paper is that re-active environmental legal research, especially if carried out within or under pre-environmental or old environmental paradigms, serves to obstruct the development of theory for sustainable development.



1 Introduction

1. Environmental law as an academic discipline has not really achieved anything of significance for ecological sustainability. This we can see when assessing factual environmental laws around the world, common choices of research projects and programmes, theory framework and paradigms. 2. The theoretically and – as regards problem-relation – most advanced legislation so far is the Resource Management Act of New Zealand. It seems to problematise sustainability and has a very extensive area of applicability. No genuine sustainable success is reported, though. One of perhaps several flaws is that the constructed system is not, so far, fully launched. National policy statements are either not issued or, when issued, vaguely formulated, which in turn makes the otherwise possible legal operationalisation virtually impossible.

* 

Staffan Westerlund is Professor (chair) of environmental law at Uppsala University, Sweden.

Carlman 2007. She demonstrates among other things that, according to the RMA, National Policy Statements are legally binding and there is a hierarchic planning system in place, which in principle should be sufficient for legal operationalisation (as for that concept, see #11), but adds that issuing such statements is not mandatory except with respect to coastal areas. Nor are such statements very precise, which itself causes severe problems with respect to legal operationalisation for sustainability. The RMA does not contain much substantive law. This seems to leave considerable room for discretion in the implementation of environmental policy and decision making on the use of land and water resources. All in all, the RMA reflects sustainability and includes means to put sustainability into legal effect but lacks obligations to for their full operation.

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3. Environmental legal research has to an overwhelming degree been re-active and not really related to problems of sustainability. I shall substantiate and elaborate this claim in this paper, while suggesting a concept of core problem. A problem (an issue etc.) is a core problem when it fully controls (in the meaning of steering, defining and/or leading to) the ultimate research issues, theory framework and methods. When selecting the theory framework in, or for, mainstream environmental law research, it seems that a major part of the programmes and projects are either legally dogmatic (or otherwise legally positivistic) or studies of approaches applied in different countries. In other words: re-active. As long as such research is not problematised with respect to sustainability, it has no significant problem height of relevance to sustainable development. Those studies that seemingly relate to sustainability problems have nevertheless little or no value from theoretical points of view if they do not lead to some conclusion from which some-



The label re-active is chosen in order to indicate research that patiently waits for legislators to enact laws and introduce policy instruments, and for courts to produce precedents; only then – but not before – can this be taken as an object of research. By definition, re-active environmental legal research either will not deal with problems which have not already been addressed by the legislature and/or the judiciary, or restrains itself to issues concerning existing law. Pro-active research, on the other hand, refers to research in the forefront, inter alia aiming at creating or developing solutions etc.



Where the realisation of sustainability is defined as the core problem.



Although this paper might seem somewhat harsh here and there, it does not overlook the possibility of – not to say need for – such research, the issues of which are not directly connected with the core problem as such, but indirectly, as in, for instance, studies of economic instruments for air pollution control for the purpose of attaining air quality standards without unnecessarily hampering development. If such studies are designed in order to increase the understanding of a basic issue as part of the core problem of achieving and maintaining ecological sustainability, there is an indirect but essential connection with the core problem. If the applied theory framework and methods are suitable to the purpose, to approach the core problem, the project is part of a core-problem-related research. If, however, the researcher applies theory etc. which does not chime with the core problem, as when the instruments are described and analysed and that is that, then it serves poorly as an indirect study around the core problem.



The concept of problem height is intended to reflect the degree of advancement of problem-solving that might come out of a project as compared to previous research. This concept goes back to a draft paper in Swedish which, in turn, is part of the background studies for my book project Environmental Law Methodology Basics. Its objective is to suggest criteria for finding projects which to a highest possible extent are valuable as environmental science. Three theses were stipulated as follows (translated from the Swedish text). 1: The higher the research problem lies over previously solved research problems, and the more of theory and method developing that the new problem requires for its solution, the higher the problem height. 2: The problem height is judged in relation to a defined scientific discipline’s levels of knowledge and method. 3: What is relevant problem height is to be judged with respect to a defined discipline or mega-discipline.

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theory for sustainable development

thing more can be learned – meaning more that is new with respect to the core problem. 4. Theory framework for environmental law easily becomes a crucial obstacle as regards the purposeful treatment of environmental issues, unless thoroughly considered and adjusted. If a problem is environment-related (as for example biodiversity) but the theory framework is not fully compatible with relevant natural science, the theory framework is insufficient, not to say irrelevant. Any legal theory framework that is intended to be applied in a research project relating to sustainable development must be adapted to what the concept of ecological sustainability stands for and calls for. If the theory framework does not pass a compatibility test, it must be adapted, or else abandoned in this context. If not, poor science will be the result.



2 Three Environmental Legal Eras 5. This takes us to paradigms. We can distinguish at least three eras with relevance for environmental law: 1) the pre-environmental era (pre 1960s); 2) t he old environmental era (from the 1960s to about 1992); 3) the new environmental era10 (from about 1992 to the present).



A key terminology for environmental law deals with what law relates to. Environment-related law is law that says, or states, something about the environment (its quality, limitations etc.). Since nature etc. reacts according to the laws of nature any law that relates to it is reactor-related. Action-related law says or states something about conduct, and activity-related law something about activities, etc. Both are actor-related. Environmental quality standards are typical examples of environment-related rules while standards of performance are examples of action- or activity-related rules. The concepts of actor- and reactor-related law is fundamental in environmental law methodology.



This is based on the simple thesis that any social or human science (or for that matter any science), that explicitly or implicitly presupposes something that is natural to be scientifically wrong, is not only incompatible with natural science but also fundamentally wrong.



(Scientific) compatibility is another key concept in this paper. When one discipline produces theory and/or information that another discipline can import and use for its own benefit, then we have compatibility. A compatibility test for sustainability must include full harmony between the theory frameworks and in the first place such simple natural scientific facts, which relate to mankind’s dependence on nature and laws of thermodynamics etc.



In my article in Svensk Juristtidning 2006, paradigms of Swedish environmental law and lawyers – including scholars – were compared with the paradigm of sustainable development. One conclusion was that much depended on the worldviews of judges and scholars, but also perceptions of science. One must also remember that Swedish legal training was – and is – mostly pre-environmental, the blame for which, was the conclusion, goes ultimately back to legal academia (where mostly re-active research and studies prevail, and this under older paradigms).

10

The concepts of old and new environmental law are inspired by Decleris (2000).

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The pre-environmental era ended with the environmental debate that accelerated during the 1960s and eventually resulted in, inter alia, the Swedish Environment Protection Act and the US NEPA 1969 and the Stockholm Conference 1972. During the pre-environmental era, law mainly focused on balancing of contemporary interests, neighbour law, nuisance, spatial planning and resource exploitation.11 Late in the 1960s environmental law as such emerged. It was often based on precaution following what was the best available technology (at reasonable cost) – BAT – and continuing the balancing of contemporary interests with public health and nature conservation, often regarded as a public interest within public law.12 International environmental law grew considerably without really integrating ecological thinking.13 Environmental legal principles evolved or were constructed. While this old environmental law was mainly oriented at contemporary issues, the 1980s brought future generations into the debate and policy considerations with the World Charter for Nature14 and the Brundtland Commission report. This led to Rio 1992 and a new core problem for environmental (and other) law, namely Sustainable Development. Hence the new environmental era. 6. Why then refer law for Sustainable Development to environmental law? Does not the concept of sustainable development include more than only environmental issues — like economic and social? The simple answer is “yes”, but a full answer comes from the inevitable fact that sustainable development cannot take place without ecological sustainability, which in turn is related to environmental quality and natural resources. So, environmental law relates to what is the necessary fundament for sustainable development. From this it follows that the object of environmental law for 11

Most probably pre-environmental law like economics was constructed and understood as if there were no limits to growth and that all resources were substitutable.

12

There was also a competing approach based on environmental limits and, consequently, pollution or quality standards, seemingly based on ideas that protective measures were not called for as long as the environmental quality was acceptable. It was probably rather broadly expressed in law in, inter alia, the Soviet Union. The basic flaw of the Soviet system was its poor legal operationalisation so that there was no effective feedback between the actual environmental result and restrictions on industry etc. Another flaw, viewed from modern sustainable development aspects, is that such an approach leads to an unnecessary blocking of environmental resources.

13

For example, the principle of harmless use of territory – sic utere – was restrictively not to say minimalistically understood to relate to emissions and the like, but not to the ecological dependence between different areas where habitat degradation in one country has environmental consequences outside the habitat area (Westerlund (1991). Natural science tells us that a habitat in one area is a sub-system in the large ecosystem that is the biosphere.

14

“[Reaffirming that] man must acquire the knowledge to maintain and enhance his ability to use natural resources in a manner which ensures the preservation of the species and ecosystems for the benefit of present and future generations. . . (General Assembly, A/RES/37/7 28 October 1982).

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sustainable development is the critical factor for sustainability. And hence the core of the new environmental law. 7. Under pre-environmental law paradigms, even environmental legal issues could be approached. But this was done as for any other legal issue (or any other issue presumably belonging to the same old-view discipline, like private law, procedural law, public law etc). That is, without genuine environmental problematisation. Much allegedly environmental legal research fits in here – even today. It approaches environmental law as if it were a species of traditional law (procedural, public, private, criminal, international, etc.). 8. Under the old environmental paradigm, environmental issues may be approached as special in themselves. Contemporary environmental consequences may be observed. But this is not always combined with environmental problem solving. It is often limited to re-active research. Exceptions are, inter alia, the search for solutions to contemporary environmental quality problems. Such is the mainstream of old environmental law. 9. The new environmental paradigm recognises sustainable development as a legal issue, and its achievement and maintenance as a legal scientific core problem. Consequently, it recognises ecological sustainability as a necessary condition, and, therefore, compatibility with natural science as a self-evident academic quality. In internal law, this includes intergenerational equity and – consequently – the extension of human rights to all future generations. This paradigm understands Earth and its atmosphere as a gigantic but limited biosphere, the carrying capacity of which limits what mankind can do with respect to total anthropogenic impact over time. Such is the core of new environmental law.



3 Research Aspects



3.1 Against or Towards

10. The following is especially addressed to professors and others, who directly or indirectly may have some influence on how research is directed and carried out. Any opposition to research ideas that are based on the new environmental paradigm and intended to be implemented within the new environmental law – where the opponents cling to pre-environmental or old environmental paradigms, claiming that these – and not the new paradigm – should rule legal research also for sustainable development – is also against theory for sustainable development. 11. On the other hand, promoting legal research based on the new environmental paradigm also promotes theory for sustainable development.

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Why then say ‘towards’ and not ‘for’? The simple answer is: We are not there yet. We can see some basics, yes. But we do not yet know how sustainable law should be. Here is where we find the most pressing challenge for legal scholars and legislators. The situation is extremely urgent, because unless law is made sustainable, it protects unsustainable conduct. And – as the reader is well aware – under the Rule of Law, if something is not outlawed, you cannot legally prohibit or restrict it unless first changing the law. And what does unsustainable law result in? The answer is obvious to anyone who understands the role of law in rule-of-law states and the fact that ecological resources are limited – and the message of the Tragedy of the Commons. If not, we could turn to Gandhi’s famous15 statement: “The world has enough for everybody’s need, but not for everybody’s greed.”



3.2 Pre-environmental Legal Research

12. One conclusion at this stage is that purely re-active research in itself does not solve problems.16 Re-active research under pre-environmental paradigms is furthermore not likely to pose questions and produce data and information in a format etc., that is useful for sustainability research. If, however, such pre-environmental research also carefully analyses the environmental consequences, or the contribution to such, of the law that is studied, and provided further that this analysis is made theoretically distinct with a view towards understanding how law affects the ecological and natural resources, it might be of some value at least as a basis for research on sustainable development. But since re-active research does not in itself solve problems, we can presume that it yields very little at a high cost, and also that it might keep the researcher too far behind the research frontiers.



3.3 Old Environmental Legal Research

13. Re-active research under an old environmental paradigm, on the other hand, recognises – at best – the relevance of nature’s reactions, of ecology, and consequently of non-linearity.17 It can include analyses of contem15

And rather optimistically, but when it was made, the global population was less than half of what it is at present.

16 17

This is inherent in re-activity.

One major barrier to the development of pre-environmental thinking – without a paradigm shift – into environmental thinking is the complexity of interrelationship between human conduct and conditions in nature, in the first place due nature’s tendency to react in a non-linear manner to anthropogenic interference. This was a core problem even under the old environmental law provided that environmental quality standards or other limit rules relating to non- human (including business) conduct were to be legally effective. Achieving such effectiveness calls for legal operationalisation, id est an unbroken

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porary effects and consequences. Re-active research without environmental consequence analysis is, however, not much better than re-active research under pre-environmental paradigms. The reason is obvious, given the notion of reactive research. 14. Pro-active research under the old environmental paradigm calls for natural scientific compatibility. Otherwise, the solutions will lack scientific foundation. It must assimilate environmental consequence analyses of previous, present and considered law, and how problems have been managed. It then proceeds to solve such environmental problems which are recognisable under the ruling paradigm.



3.4 New Environmental Legal Research

15. We arrive now at research for sustainable development – new environmental legal research, which again can be divided into re-active and pro-active research (although only the latter really qualifies for the preposition ‘for’). Re-active research under the new environmental paradigm includes, besides what applies to similar research under the old environmental paradigm, biospherical understanding and intergenerationality. This requires much more complex consequence analysis. 16. With pro-active research under the new environmental paradigm, on the other hand, the problematisation of Man, law, the biosphere and sustainability comes into the open. This is where environmental law has made little really significant progress as yet. There are, however, strong reasons to assume that the introduction of systemic theory and thinking,18 in combination with theory of legal operationalisation and implementation deficits, along with the intercompatibility of legal and natural science (recognising inter alia the significance of non-linearity), will open a very promising path (and not a dead end) towards a theory for sustainable development. 17. This lack of progress is serious in more than one respect. First of all, sustainable development has been part of soft international law for at least 15 years and of some countries’ national law for about the same time. It was formulated more than 20 years ago, providing the foundation of the WCED report shortly after.

chain from a quality standard all the way to rules that are directly enforceable against persons. Such operationalisation serves inter alia as a rectifying process, meaning a process where the non-linearity of such ecosystems, the quality of which was the object of quality standards, is rectified into linear, directly enforceable rules. (Gipperth 1999.) This is summarised in English in Westerlund 2007, p. 293 et seq. 18

Decleris 2000.

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Counting from 1972, the global population has so far (2007) increased from less than four billion to more than six billion.19 The global biodiversity has deteriorated considerably during the same period. Virtually all relevant natural resource trends have also declined over the past 35 years, as the content of most anthropogenic environmentally problematic substances in the biosphere has increased. No country, nor the international legal order, has yet gained full and exercisable control of sustainability. The two illustrations below are sufficient justification. They depict changes in the world which either increase the burden on the biosphere (population) or constitute virtually irreversible ecological degradation (biodiversity). Since 1970, biodiversity (here illustrated by vertebrates) has decreased and the trend seems to continue. This has taken place during the old environmental era and the beginning of the new one.

19

2007. The world population illustration is downloaded from the Internet. The sources are given in the illustration but the red text and arrow in the chart are added. The biodiversity index illustration is from an earlier Living Planet Report. The latest edition as of writing is the 2006 edition, which can be downloaded from http://assets.panda.org/downloads/living_planet_report.pdf.

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Figure 3.7. The Living Planet Index, 1970–2000 The index currently incorporates data on the abundance of 555 terrestrial species, 323 freshwater species, and 267 marine species around the world. While the index fell by some 40% between 1970 and 2000, the terrestrial index fell by about 30%, the freshwater index by about 50%, and the marine index by around 30% over the same period.

18. During roughly the same period covered by the two illustrations, environmental law not only emerged as a discipline but gained acceptance and began to be broadly taught at universities. But which environmental law is that? Generally, the answer seems to be ‘environmental law as is’. If so, as no country has established a sufficient 20 legal order for sustainability, environmental law training that merely deals with environmental law as is, is inherently re-active and gives no real insight into theory for environmental law for sustainable development. One remedy is to expand environmental law training to cover not only law as is, but also environmental law methodology.21 The term is chosen carefully to reflect the pro-active stance of this sub-discipline. It does not react to law that is 20

A legal order can also be regarded as a legal system. A sustainable legal order facilitates – as a system and as a whole – efforts to achieve and consolidate sustainability. If a legal order includes counterproductive law (often outside the specific environmental laws) to the effect that sustainability cannot, or will not, be achieved, then there is no sustainable law (Westerlund 1997).

21

In my forthcoming Environmental Law Methodology Basics this methodology is briefly characterised as follows: “Environmental law methodology takes its point of departure in how to achieve and maintain ecological sustainability. Its overall object is environmental control. Such control aims at environmental management where natural resources are not only included, but regarded as the real fundament.”

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already enacted, but deals with techniques for environmental legal control and consequently with solutions to environmental control problems. Problem solving is a main objective and the approach inherently pro-active. When we put this in the perspective of sustainable development, while recalling that so far no country has created a legal order that is sufficient for sustainability, it is easy to see this as a step towards improving environmental legal science; a direction towards theory for sustainable development.



3.5 Intermediate Conclusion: Against or Towards

19. The basic message to be formulated against the background of the three environmental eras is that if we stick to pre-environmental or old environmental paradigms and theory frameworks, we are in fact acting against theory for sustainable development. The previous paradigms are not capable of easily (if at all) adapting intergenerational equity in legal thinking and combining it with ecological understanding, where inter alia non-linearity is an ever present issue and the biosphere’s limited carrying capacity is another. This, when combined with the widespread tradition in legal science of dealing with law as is (id est, reacting to already enacted and practised law), efficiently slows down not to say obstructs completely significant developments towards adequate legal theory for sustainable development.



4 Theory Needs

20. I now turn to what seems to be needed with respect to theory for sustainable development relevant for legal science and law.22 Some hints have already been given supra. It is rather easy to point at present theory inadequacies and what they might signify. Reasonable explanations for inadequacies include burdens inherited from older, no longer relevant paradigms. The rather critical approach, which follows largely from the significant distinction between re-active and pro-active research, should not be understood as following from any performed metascientific quantitative assessment. Nor should it be taken as a suggestion that nobody cares for development for sustainability. Research and development of theory on and/or for sustainable development has started, that is for sure. 22

I deliberately chose the expression ‘theory for’ in order to stress pro-activity. Much is already written about theory on sustainable development, from analyses of what was intended in Rio, i.e., its legal significance, to sceptical essays which rather reflect authors’ state of denial more than anything else. Much that is written seems to reflect efforts to reshape the notion of sustainable development so that it fits into older, pre-environmental disciplinary paradigms. Whenever an author misses the significance of ecological sustainability to the ability of all future generations to extract from nature what is needed, the academic result runs the risk of being poor.

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Some of this research might, however, have missed the core problems; other efforts might rather be due to some kind of denial than real problem solving; and some might have led to dead ends.23 Some is probably hampered by traditional views on what legal science should be about, normally leading to the dominance of re-activity. At its worst, slow theory development and re-activity on behalf of legal scholars leaves to other disciplines the question of how to achieve and maintain ecological sustainability. This is risky, unless it is followed by the essential, fully understood and recognised information about the role of law in democratic nations under the rule of law.24 Legal scholars have here a considerable responsibility. Not only do they have to secure the information’s dissemination. Since law has special and comprehensive functions as, and for, effective policy instruments, legal scholars must participate in research and help develop such instruments. They then have to understand and apply theory and techniques which are compatible with what natural science teaches (compatibility). And not only that, they also have to understand and apply, inter alia, system theory. Otherwise there is a risk of their contributions to the creation of control systems being inherently insufficient for sustainability. And if so, this in combination with the effects of rule of law, would most probably result in an unsustainable legal order which in turn would secure ecological unsustainability and finally no sustainable development. 21. When facing other social and human sciences, science for sustainable development might have to oppose, for example, political science strategies emphasising decentralisation for decentralisation’s and democracy’s sake. In only takes common sense to conclude that such a strategy as an overriding goal seems fruitless provided that we regard what lies behind the Tragedy of the 23

My first effort with sustainable development as the core problem led into a dead end. In Westerlund 1971 the idea was that cost-benefit analysis could be developed further as a legal method for balancing of interests within the framework of sustainable development. It took me several years and some clever observations from my supervisor to realise that this would simply not fly, mainly because uncontrollable obstacles emerged when it came to assessing the present value of non-monetary resources for future generations. This failure, or illumination, is elaborated in Westerlund 1997. In the 1971 book, what today is referred to as sustainable development, was there expressed as follows (translated from Swedish): “to economise with the natural resources and to keep the environment at such a high quality so that we not even in a long term perspective have to face a lower standard increase, or anyway a standard decrease, which is caused by how we have degraded natural resources without this degradation having given at least the equivalent on the positive side as concerns the long term welfare.” As today’s reader easily sees this was a very optimistic variety of sustainable development, aiming at long-term welfare instead of needs. It led into a dead end because I was hooked on welfare economics which I tried to integrate with a law on sustainability. It would not be a good idea to make that mistake again.

24

This issue is addressed in the three-filter theory and theory of environmental implementation deficits, presented in Westerlund 1997 and 2003(a) and to be further presented in the coming Environmental Law Methodology Basics.

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Commons and Ashby’s law (to which we will return #27). Or strategies might be proposed based in the first place on voluntariness. But the defence of that strategy calls for methods to handle not only the Tragedy of the Commons and what follows from normal economics, but also the future problems when the nice guys have voluntarily restricted their environmental impact, the less nice or even bad guys have not, and when a resource is so limited so that quotas must be distributed, and the nice guys find that the quota based on previous consumption or environmental impact results in them getting much less than the not so nice guys. Through all this runs the fact that whatever is not illegal is protected by the law and the easily defended theory that whichever policy instrument that is to be effective in one way or another must be sustained – directly or indirectly – by the legal order. And that is the rule of law. (I get back to some aspects on this in #25 infra) Without good legal scholarship, such strategies are destined to exacerbate unsustainability. 22. In this paper I use the expression “towards” theory for sustainable development. I also hinted (#11) that we are not there yet. But we do know something already. We know for example that such theory has to deal, not to say cope, with complex problems and issues (#13) which are not understandable without natural science. Good science requires theory to be sought and developed, starting from the chosen scientific problem, not the other way around. Here the chosen problem, the core legal question, as regards sustainable development is: How should law for sustainable development be? 23. This question takes us to the necessity for sustainable development of ecological sustainability. Achieving and maintaining such sustainability constitutes the core problem of new environmental law. It indicates some theory needs. Full compatibility with relevant natural science is necessary. Essential issues are ecological limits, thermodynamics and – consequently – the carrying capacity of the biosphere. Unlimited anthropogenic impact does not go together with ecological sustainability. Thermodynamics, on the other hand, sets an exergy price on upgradation of such environmental qualities and other natural resources which do not heal by nature and solar energy.25 Serious ecological degradation is virtually beyond repair because of exergy limitations.26 This reduces considerably, not to say fatally, the possibilities of societies to adhere to the philosophy of “degrade now – upgrade later”.27 25

Westerlund 2003.

26 27

Cf. eco-exergy according to Jørgensen (2006).

In environmental law research, exergy seems a fruitful factor. Exergy is, simply put, the useful quality of energy and it goes back to the laws of thermodynamics. Jonas Christensen based his research on phosphorus, ecocycling and environmental law on this. See also, for example, the definition offered by Jørgensen 2006. p. 48: “Exergy is defined as the amount of work (=entropy-free energy) a system can perform when it is brought into thermodynamic equilibrium with its environment.” There is also a related concept ‘emergy’ which Jørgensen defines as “the ultimate cost to construct any component

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This is the natural science based aspect on law for ecological sustainability. 24. In environmental law research, so-called policy instruments receive much more attention (another term could be “means of control” or “control instruments”). Law is often placed alongside other policy instruments, as if law and, for example, economic incentives were alternatives to each other. Such approaches are often just sloppy, since law generally secures not only economic instruments but also many really soft ones like eco-labelling and other informative instruments. When so-called regulatory instruments are likened to economic instruments, the authors are probably only thinking of one part of the law, namely such rules which include, or are the foundation of, commands and prohibitions – direct action-regulating rules. In order to avoid running into different dead ends when developing theory for sustainable development, the role and possible functions of law must be well recognised. It seems that legal scholars here have an important educational task to fulfil, explaining the concept of rule of law and legality and the consequent legal fact that whatever is not outlawed or otherwise illegal is instead legal and in principle protected by the legal order. As most unsustainable conduct in history of mankind has not been illegal it has therefore been – legal. For fruitful compatibility in science for sustainable development to occur, policy science, sociology of law and other social and human disciplines must understand and accept this (#20-21). From this follows that virtually any so-called policy instrument that is intended to function purposefully must have some kind of legal sustenance (implicit or explicit). 25. Recognising law as a policy instrument, by means of which a multitude of other more or less special policy instruments can be regulated and controlled, and providing the rule of law, it is clear that the law must lay down and sustain limits that relate to the environment and natural resources. This must be done to the extent of sufficiently safeguarding the ecological and resource-related foundation in theory and in fact. 26. Environment-related limit rules will typically call for legal operationalisation. Environmental law methodology has identified this kind of law as not so much goal oriented law as “navigation” law,28 thus lending the term navigation a special legal and planning meaning. It goes back to the peculiarities arising from sustainable development’s failure to qualify as a positive “goal” in a normal sense,29 but as something that is to continue endlessly (until the sun goes out). For legislators to manage this, the solution is to install legally based control systems by which to navigate society, and the global population, so that in an ecosystem expressed in solar equivalents”. This has been applied in a discussion on balancing of interests (and proportionality) with exergy and not money as a common denominator in Westerlund 2003(b). 28

Gipperth 1999.

29

If sustainable development is achieved the tricky task is to maintain it – in principle for ever.

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any course of development that might lead to unsustainability is safely avoided. Hence the navigation allegory. 27. The achievement of sustainability calls for large societal systems to exercise adequate and sufficient control of persons’ conduct, so that the natural system (the biosphere) will not be degraded beyond sustainability. Environmental legal research must therefore be compatible with system theory as well, observing Ashby’s Law on Requisite Variety.30 It is natural for a lawyer first to look at national legislators for the exercise of such control. National law is the primary legal instrument by means of which persons’ conduct can be enforceably controlled. But sustainability relates to the entire biosphere. Following Ashby’s law, the controlling system should therefore be global as well. Nations are only parts of the global society and at the same time ecologically border-less. One nation can be affected ecologically by human conduct somewhere else on Earth without the nation having any jurisdiction over it, and thus no control. 28. One thinks of course of international law. It could in principle have the same coverage as the biosphere. Two gigantic flaws are, however, obvious here. One is the familiar weakness and slow tempo of present international law. The second is that – as the main rule – the legal operationalisation of international law all the way to persons has to go through the nations. As if this were not enough, it also seems that international law suffers from old paradigms, for example when it comes to state sovereignty and pre-environmental understanding of the sic utere principle and – on top of that – since it is internally severely inconsistent because of a very substantial proportion of counterproductive law, of which so-called free trade law is a major example. It is not exactly rocket science to conclude that a legal subsystem for trade, that puts burdens of proof for environmental problems and proportionality on any state that tries to protect the environment by means of trade restrictions, inhibits ecological sustainability in a world with growing populations, economic growth and permanently developing technology. 29. In this context, the EC system seems to offer at least one paradox. At a first glance it looks as a closer application of Ashby’s law, in contrast to purely national legal systems. There are also means for achieving a faster enforceability against persons than normal international law. On the other hand, EC law is inconsistent. It seems to put one allegedly typical environmental problem in focus, but solves it poorly. There are indications of a belief that environmental issues call for harmonised rules. The ecological problem is, however, far more complicated. Since ecosystems vary, inter alia, geographically, the controlling 30

Referred to by Decleris (2000). This law “demands a controller with a variety of responses that can match the variety of the environmental information”. “Given that the environment is dynamic and not completely understood, the controller must learn and adapt.” Quoted from Johansen and Magerholm Fet (1999). Ashby’s law is reported as being published in Ashby (1956).

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system must be able to handle that too. This is not generally done with uniform actor- or product-related rules. Take as an example a pesticide that changes into something harmless after a time, the time relating to temperature and other climate conditions. Even if it could be used in the Mediterranean countries without significant side-effects, it could be very problematic in subarctic regions. Any law based on the idea that the pesticide could be allowed within the entire union is most probably incompatible with ecological sustainability of the entire union. If a member state in the north intends to restrict its use for environmental reasons, it faces a number of legal barriers and – as hinted supra – it does not take any advanced science to understand that this special contradiction to the precautionary principle counteracts ecological sustainability. EC law has rendered state sovereignty largely irrelevant. EU, on the other hand, has a decision-making structure that makes it possible for environmental impactors to virtually hijack EC and put forward law which restricts the ability of member states to control even their own environment and citizens’ environmental conduct. The enactment of REACH indicates this. It is not even clear how the principle of sustainable development stands in relation to the policy of free movement of goods, for example. 30. The international law, and also EC law, are clearly insufficient for securing environmental sustainability. This conclusion might seem upsetting, even theoretically, because the larger the controlling system, the more it can control. The reason is at least partly because these two legal systems are – as already mentioned – internally inconsistent. None of them is sustainable. For one thing, they reflect conflicting goals, nor is sustainable development among the highest priorities. For another, they are simply too inflexible to adapt to whatever occurs in the environment anywhere within the Union for the purpose of controlling the environment for ecological sustainability. This mega-problem is not likely to be solved, unless legal scholars stop relying on re-active research and start conducting pro-active research and, in doing so, relate to the core problem of ecological sustainability and readjust legal theory accordingly. The ruling international and EC law paradigms would then have to be replaced. Legal scholars will need theory and information from other social and human disciplines. It is important nevertheless to have defined the core problem (and consequent sub-problems) and clearly outlined the theoretical framework derived from the core problem, with which imported expedients from other disciplines must be compatible. If this is not done, or accepted, the research will remain a simple multi-disciplinary theme-based project, insufficiently proactive, locked on solutions that don’t address the core problem, but is instead – at best –a project on the core problem without adequate theory framework.

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5 Concluding Remarks

31. The object of the new environmental law is the environment as – ultimately – the biosphere, its qualities and resources. The core problem lies in achieving and maintaining ecological sustainability as the necessary foundation for sustainable development. Progress in solving this core problem can in principle be monitored in the physical world, though mankind will need to adjust its collective conduct and address its collective anthropogenic environmental impact, without which nature’s reactions will end in ecological unsustainability. Present theory on handling implementation deficits has began to observe the importance of system theory31 and the significance of environmental control systems with built-in feedback mechanisms. This has in turn led to a theory of adaptive environmental planning.32 So far, no other theory with the same or greater capacity to illuminate and approach the solution of the core problem seems to have been presented. Even if there was, the area for pro-active research in – and for – the future is vast. Any theory aimed at solving the core problem must recognise the core problem as it really is, and not redefine in order to fit into disciplinary thinking that was developed for other problems. Observing the role of law and the need for economising with limited ecological and other natural resources and thermodynamics, and system theory, science for new environmental law and for sustainable development has to be pro-active. Because it is so extremely improbable that a globally applicable and fully implemented legal order for say nine or more billion people will develop without pro-active legal science for sustainability and sustainable development, it would be un-scientific to rely on such a remote chance.

31

Cf. Decleris 2000.

32

Carlman 2005.

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Bibliography Ashby (1956) Ashby, W.R: An introduction to Cybernetics, Chapman and Hall, London, 1956.

Carlman (2003) Carlman, I: Adaptiv miljöplanering nästa. I Michanek & Björkman (red): Miljörätten i förvandling – en antologi. Rättsfondens skriftserie 36. Iustus förlag 2003.

Carlman (2007) Carlman, I: The Resource Management Act – RMA – through Externa Eyes. Accepted for publication in New Zealand Journal of Environmental Law 2007.

Decleris (2000) Decleris, M: The Law of Sustainable Development. General Principles. http://europa.eu.int/comm/environment/law/pdf/sustlaw.pdf (2000).

Gipperth (1999) Gipperth, L: Miljökvalitetsnormer. En rättsvetenskaplig studie i regelteknik för operationalisering av miljömål. Uppsala universitet 1999.

Johansen and Magerholm Fet (1999) Johansen, L.B. and Magerholm Fet, A An organisational approach to industrial ecology using the soft systems methodology. Interdisciplinary environmental review – Proceedings 1999. Interdisciplinary Environmental organisation (IEA) 1: 2, 67-82 5th International Interdisciplinary Conference on Environment, Baltimore 1999.

Jørgensen (2006) Jørgensen, S.E: Exo-exergy as sustainability. WIT Press 2006.

Westerlund (1971) Westerlund, S: Miljöskyddslagstiftning och välfärden. Natur och Kultur 1971.

Westerlund (1991) Westerlund, S: Wetlands and the law. I Conferêcia Internacional De Direitio Ambiental (p 153 ff), Rio de Janeiro 28 a 31 outubro 1991. ANAIS.).

Westerlund (2003(a)) Westerlund, S: Miljörättsliga grundfrågor 2.0. Åmyra förlag 2003.

Westerlund (2003(b)) Westerlund, S: Miljön och avvägningarna. In Michanek & Björkman (red): Miljörätten i förvandling – en antologi. Rättsfondens skriftserie 36. Iustus förlag 2003.

Westerlund (2006) Westerlund, S: Världsbilder, rättsvetenskap, juridik och hållbar utveckling. In Svensk Juristtidning 2006, pp. 309-344.

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Westerlund (2007) Westerlund, S: Law and Mankind’s Ecological Dilemma. In Führ, Wahl, Wilmowsky (Hearausgeber): Umweltrech und Umweltwissenschaft. Festschrift für Eckart Rehbinder. Erich Schmidt Verlag 2007.

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Sustainability and a New Concept of Liberty Felix Ekardt

chapter 1.4



sustainability and a new concept of liberty

1 Liberty in the Context of the “Non-sustainability” of Western Civilization

This article is about a new concept of liberty in the context of sustainability. Law and policy in western states essentially transform the mainstream of modern philosophy of justice – political liberalism – into binding law. Of course, I am not talking about liberal parties or neo-liberalism here; what I mean is the basic theory of liberal democracy as it has developed step by step since the reformation. The central idea of political liberalism is a maximum of liberties along with a democratic type of state. The liberal democratic framework of western societies has resulted in most inhabitants being able to enjoy an extent of liberty and wealth which would have been inconceivable for human beings in former times. Nevertheless, it is still a matter of fact that the law as well as the philosophy of justice virtually neglect questions of both global justice and intergenerational justice (which means sustainability) in any strict sense – apart from verbal declarations, that is. So far, we haven’t created a way of life which is capable of being practised all over the world or of remaining tenable over centuries. So far, we have not really made much progress towards more energy and resource efficiency, more sufficiency and more renewable energy and resources. But it is still a matter of fact that the law as well as the philosophy of justice are more or less restrained to the resolution of conflicts between contemporaries and between people living in the same country. Our narrow focus as regards the spatial dimension is evidenced by the fact that global wealth is enjoyed by just one fifth of the world’s population. On the other hand, the people in the southern hemisphere very often live in poverty, without any social insurance system and without proper prospects of education. In addition, they often live under permanent threat of military aggression or civil war, undemocratic regimes or ideological fundamentalism. Thus, so far political liberalism hasn’t fulfilled the dream of the enlightenment, which was to overcome all kinds of misery in the world. Similar to the problem of global justice, future generations will inherit significant dangers which will impact the global climate, the fertility of the soil, the ozone layer, and so on and so forth. At the moment, for example, each and every German citizen may have an emission rate of dozens of tons of problematic substances a year. Only a small part of this comprises typical pollutants, but a very big part comprises climate gases like carbon dioxide. This is only half of the emissions of an average US-American, but it is almost double the *

Dr. Felix Ekardt (LL.M., M.A.) is Professor of Environmental Law at the University of Bremen, Germany.



My own theoretical approach which is presented here can be found in more detail in: Ekardt 2008; Ekardt 2007; Ekardt 2005.



The following scientific data can be found in many scientific reports for political decision-makers, e.g. Sachverständigenrat für Umweltfragen, Umweltgutachten 2002, 2004, 2006.

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quantity of Japanese emissions. And it is tenfold or hundredfold the emissions that are caused by the people in the developing countries. Indeed, the problem of overexploitation of natural resources has occurred throughout history time and again. However, the global dimension of the issues we face today and the deterioration of the whole ecosystem context and the global climate is historically unprecedented. If, e.g., China or India succeeded in copying our way of life and 2.3 billion Indian and Chinese people were able to enjoy 1.2 billion cars, air conditioners, food imported by air, etc., it simply wouldn’t work. The large number of environmental norms on the national, European, and international level do not really change this situation. Even if, e.g., the Kyoto Protocol were to be observed optimally (and it will not be observed optimally), it would prevent only about 0.1 degree Celsius of the predicted global warming. But in contrast to what we used to think, the solution to this precarious situation is not simply to establish climate goals for the southern countries, too. The major problem is still the wealth in western countries (although the middle classes in countries like China or India are rapidly catching up). Of course, we have a lot of talk about climate protection etc. – but what do people and politicians in the “role-model” EU really do? We like having southern fruit in wintertime, going on holiday by plane, driving to work by car (which needs 10 litres of fuel per 100 km) and so on and so forth. Maybe there will be some paradigm shift in 15, 30, 40 years – but that would be too late anyway. The intention of sustainability is exactly to fight this situation as well as the above mentioned “global-intergenerational” dilemma. Sustainability is something that refers to global or intertemporal issues. Sustainability is not an undetermined concept which includes all the desirable political goals one can think of, and this is why I feel some scepticism about the well-known (environmental-economicsocial) “triangle of sustainability”. For this reason, it is also the major principle of liberal democratic societies which is in danger – it is liberty itself: On the one hand, the danger for the environment poses a threat to our liberty by destroying its vital basis. Without air, food, drinkable water, a stable global climate, and without the absence of wars and civil wars (including wars on resources) the constitutionally guaranteed liberties like freedom of speech, the right to demonstrate, freedom of property etc. would take us nowhere. On the other hand, liberty one day (facing increasing environmental catastrophes etc.) may be endangered by the idea of an “ecological dictatorship” – since a speedy resolution of the above-mentioned problems may turn out to be an illusion in democratic societies. Nevertheless, lawyers usually interpret sustainability in European and national constitutional law (or international law) as something that entitles but doesn’t really oblige the legislators to force a big change of the aforementioned



For more details concerning this and all other aspects of this contribution see fn. 1 above.

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situation.  More than ever, sustainability as a principle of European or national administrative law, of course, cannot force the politicians to do anything. Therefore, it could be helpful to transform sustainability into a new concept of sustainable liberty by giving a new interpretation of this major norm of western constitutions. Why is that important? (1) Liberty or freedom as a fundamental right can be put on trial – in contrast to the well-sounding principles in objective law which don’t really oblige but only entitle the creation of sustainable acts of parliament (but neither the citizens nor the politicians really want these acts). (2) Furthermore, liberty is the basic concept within the framework of human rights respectively fundamental rights – and human rights are the strongest element of a liberal democratic law. Therefore, it might be most useful if liberty itself became the obviously necessary counterpart for economic liberty which usually has a very strong position. (3) By the way, a new concept of liberty overcomes the traditional biased “economic-centred” concept of liberty (which arose from Calvinistic Protestantism) but also points out how and why we need environmentalism: the idea of an ecological dictatorship is delegitimized, since we realize that the environment gains its normative relevance as a precondition of liberty. (4) This is not only relevant on a normative level, but also on a motivational level: It is much more convincing to restrict my way of life because of the rights of other (maybe even future) individuals than to say “that I have to sacrifice my liberty to the public interest” (the “public interest” does not even exist in my approach, as we will see later on).



2 Roots of “Non-Sustainability”

In order to obtain a better understanding of why we really need enforceable norms with regard to sustainability, we need to look at the anthropology of “non-sustainability”. So why do I doubt (in a kind of “anti-Rousseau” manner) that politicians and citizens will enforce sustainability anyway? So far, we don’t exactly leap into action with regard to sustainability. We simply go on cultivating a lifestyle that exercises a significantly negative effect on resources and climate. Paradoxically, young environmentalists may very often have a worse balance of resource consumption than a typical grandma. But this is not as paradoxical as it sounds. Especially environmentalists are usually rather well-off – and much more self-development-orientated than a disciplined and canny pensioner. Furthermore, all human beings (also environmentalists) share a tendency to convenience, expulsion, and to overseeing the temporal-spatial consequences of human behaviour. The existential feeling that our life is too short not 

For a very good overview of the mainstream approach to theory of fundamental rights (which will be criticised in this article) in Germany and the EU see e.g. Poscher 2003.



Liberty and freedom are used as synonyms in this contribution, according to the continental legal tradition. A more precise explanation what is meant by liberty/freedom is given in section 4 of this article.

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to consume things in the present and to the utmost, and the seeming imperatives of the moment are simply more powerful when compared to our sympathy and consideration for people living some 100 years from now, or people in Bangladesh who are dying of starvation at the very moment I am writing this sentence. And economic wealth and the longing for self-development are so dominant in western culture, that it seems very hard to find a more sufficiencyorientated way of life attractive as a son or daughter of Europe or North America. Of course, we are more or less trapped in economic constraints which not only refer to the individual, but which also result from complex structures. Enterprises – especially with respect to global competition – have to be profitable, above all in the short term. However we have to keep in mind that also consumers practice a certain way of economy and a certain way of life – we like to constantly buy lots of things, we usually aren’t very interested in the circumstances of production and often regard ecological products as very expensive. No business enterprises without consumers! – of course, the sentence is true the other way round as well. Certainly, we all do know that several long-distance journeys by airplane a year, the daily drive to work by car and the southern fruit during wintertime embody a kind of lifestyle which isn’t achievable worldwide and intertemporally because the stock of resources and the climate wouldn’t stand it. Instead of talking about genetic, cultural, and economic factors, we could also put this analysis on a more general level. For example, take a look at me. I am quite convinced of the morals of sustainability. But if my girlfriend were to say she would like to escape from the harsh February weather and fly to Egypt for a week in order to relax and feel comfortable, the question arises: what will I do? Will I go with her? Maybe I will! But why? What about my empirical motives? Well, first of all it’s conformity: If I refuse to fly I will probably be seen as a crank, face social exclusion and even hostility. Second, it’s emotions: the relationship to a loved person, in case of doubt, is much stronger than my moral convictions concerning sustainability etc. Third, it’s self-interest: If I say no I’d be missing out on something nice; furthermore my girlfriend would be annoyed because I am a stickler for principles. Fourth, it’s wrong values. Fifth, I know that I cannot save the climate on my own anyway. The complicated situation as just described doesn’t only affect citizens and companies which need the consumers but also politicians – and this is important for a theory of liberty. Because a person who wants to make a political career under these circumstances and who tries to force through massive strides rather than small incremental steps towards climate protection and to resource efficiency (by making flying and driving financially unattractive etc.) would probably be voted out of office immediately (a famous slogan of the former German opposition was “ecological tax = K.O. tax”). Therefore we often experience a rather symbolic environmental policy, which isn’t really effective in solving our big problems. Maybe climate protection could even become financially

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attractive in many cases (e.g. heat insulation). But such win-win opportunities do not always exist (and even then are very often ignored – which shows that not only “the economy” is our problem). And even if someone improves the insulation of his house, he may spend what he saved on flying to Indonesia, South America, etc. However, a policy of strong environmental taxes, e.g. on energy, to promote energy efficiency by making flying and driving much more expensive is always in danger of being voted out immediately. Economic growth in the short term still has absolute priority not only for citizens and business men, but also for politicians (which are linked in a vicious circle). Therefore, it is important to ask whether within the context of general principles of western law an obligation arises to come to a more sustainable climate policy. So far, sustainability in law – from the standpoint of the opinion leaders – is more or less a non-binding idea which doesn’t really force political institutions to act in a more sustainable way. On the other hand, environmental instruments like ecological taxation are even seen as something that violates economic basic rights or liberties (e.g. property – or European and international trade law). Consequently, even if governments were willing to adopt a more effective environmental policy, such a policy would always be in danger. Therefore I would like to try to turn the perspective: Maybe our governments are neither forbidden nor entitled, but obliged to force the internalization of external costs, especially with regard to climate change, for instance by establishing ecological taxes (which could make environmentalism financially attractive even for egoistic actors and therefore solve the problem that acting ecologically for single actors might become unattractive, since a single person cannot solve the problem on his own). Maybe it is not a strong environmental policy which poses the real danger to European and international freedom (e.g. of trade), but the externalization of costs that can be seen in the absence of strong environmental rules in most countries. Therefore, it is necessary to introduce a new concept of (sustainable) liberty in general.



3 Liberty and Universal Justice

If we want a conception of sustainable liberty now, we need to answer two questions first. Why liberty? (the constitutions cannot answer this question – but we need the answer because we cannot just say “liberty is just what lawyer XY arbitrarily calls liberty in fact”), and a justification of a norm may help to understand the norm. And why shouldn’t we be indifferent to future generations and people living elsewhere? (the constitutions don’t answer this question either because they don’t tell us who is the “everybody” which is



For a general theory of the interpretation of the law see Alexy 1991.

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the subject of human rights) Of course, these are very difficult questions, but I will try to give a very short answer here. To put it in other words, the first question is “is there justice”? Are there objectively justified norms? The definition of justice is just “the moral rightness of the order of human societies”. This is just a name – if you wanted, you could call this rightness differently (for example dog or squirrel). Anyway, I am talking here about this “rightness” (by the way: rightness is something that means norms – if we talk about facts, we would talk about truth). But the more interesting thing is not the definition, but the content. Is it really possible to find out what is just? Certainly, religion is no longer capable of answering this question in a pluralistic world anymore, since it is based on the presupposition that there is a higher being and that human beings are enabled to understand His will. And this is something that you can believe or not – but you cannot know it (as Kant demonstrated 200 years ago). Others may now say: Questions for the objectivity of norms etc. are unnecessary. Especially scientific climate research (IPCC etc.), “has already shown, that we have to fight climate change”. But talking like this conceals a logical mistake. Since an empirical fact in itself does not generate any normative consequences (like “we have to fight climate change”), to deduce normative ideas e.g. from climate change consequences, we need to justify a norm that says that these consequences are unpleasant. And exactly this is my task here. Most preference theorists (e.g. most economists or utilitarians or theorists who believe in arbitrary majority decisions) or communitarians would deny this task and deny any objectivity as regards norms, too. They would say that exactly that the just political order is that which is in accordance with the empirical preferences of human beings (or the preferences of a certain civilization). Therefore economic theory usually combines an action theory saying “in fact human beings act in accordance with their – often egoistic – preferences” with a theory of justice which associates justice with these empirical preferences. Preferences in themselves cannot be criticised from this point of view. That “empirical preferences for sustainability” so far do not really exist is pretty obvious, once we watch our real behaviour. And this (of course) creates big problems for the enforcement of sustainability. But are our non-sustainable preferences right only because they exist in fact, too? Maybe a preference approach can lead to similar results as my discourseethics approach which I will develop later on, but that notwithstanding, a preference theory of justice has serious drawbacks. (1) Why should preferences be per se just? Was the Third Reich just because it was in accordance with the empirical preference of some kind of majority? And can we simply ignore future generations or people living in the southern hemisphere just because we feel the empirical preference to ignore them? (2) Furthermore, a preference theory is 

My own theoretical approach, which is presented her, involves certain similarities with, but also major differences from: Alexy 1995; Habermas 1996; Rawls 197; Alexy 2002.

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not only powerless against totalitarian political majorities, (3) it also hinders new perspectives in morals, like intergenerational or global justice which don’t fit with our traditional preferences because they are too inconvenient, too unknown etc. (4) Furthermore, it involves a naturalistic fallacy to affiliate normative consequences from something empirical like preferences. But as the most important point (5) is that the position which postulates “there is no justified normativity” (apart from majorities), it entails a self-contradiction. Since (a) saying “there is objectively no objective normativity”, but implying at the same time this statement in itself is objective and not subjective, entails a contradiction. And it also (b) entails a contradiction to justify normative statements time and time again and stating that “norms cannot be justified”. And every human being justifies norms from time to time (= gives normative statements and uses words like since, as, because). These arguments are also valid as a criticism of all kinds of theories that try to base morals and law on “emotions” or “cultural traditions that a society accepts in fact” and so on and so forth. Of course, statements on norms (as well as on facts) are always fallible – human statements are wrong very often. But this fallibility does not mean at all that human insights are always subjective, as we have seen. Even using words like “wrong” or “learning” logically imply the existence of “right” things to discern in the world and of things to learn. Nevertheless, the intention of the preference theorists that questions of “good life” are none of the state’s business, is right – but you have to justify this intention in a different way (we will talk about that later on). By the same token, majorities cannot justify the basic principles of justice – but nevertheless they are important for concretising the principles, you also have to take notice of the majority preferences when you look for a strategy of enforcement of justice. Therefore, another approach towards justice is needed. Let’s start like this: In a pluralistic world people are constantly disputing about normative questions. Even fundamentalists and autocrats cannot avoid it – when using the human language, as human beings necessarily do over and over again. However – and now in my view it becomes tricky but at the same time very essential – those who argue by using normative grounds or justifications (thus rational, e.g. giving a thesis and then using words like “because”, “as”, “therefore”) logically presuppose two things: • t hat it is possible to come to objectively justified norms (therefore saying “norms are always subjective” leads into a self-contradiction) – as we have seen earlier – and • t hat their possible discussion partners (which is every human being) have to be treated with equal respect and impartiality. Why? Because normative justifications are egalitarian and the opposite of degradation. And it is also correct that normative justifications are logically (if we want it or not) addressed to individuals with intellectual autonomy – which

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is every human being –, because normative justifications cannot be checked without autonomy. Consequently, respect for the autonomy of individuals (human dignity) and the independence from specific perspectives (impartiality or fairness) are universal principles of justice – no matter whether we are willing to accept them in fact or not. To put it in an example. No one could say “Statement X is well justified because I will kill you if you do not believe me”. And saying “Once I manage to hinder Mr. Y from entering the room and presenting his objections, we will see that my thesis X is very well justified” would also be pointless. From dignity and impartiality follow some more principles (which can be taken not only as a theory of justice, but also as an interpretation of western constitutions): in particular that a fair constitution has to be based upon a maximum of equal liberties of the individual. This also implies a system of democracy with checks and balances which might be the best institutional framework for freedom – but this framework is only entitled to deal with conflicts between different liberties (or preconditions of freedom like a social insurance system, education, etc.). This all shows the possibility of justice and the possibility of objective (universal) norms in all human societies – as well as a certain content of justice. I have tried to show in other publications that a number of objections cannot overrule such a theoretical approach. The whole approach, for instance, is not cultural imperialism, as it is (a) just a reconstruction of the logical implications of human language, and the approach (b) also leaves a margin of discretion in balancing the different aspects and kinds of freedom. By analysing the preference theories we have also seen that the refutation “that many human beings in fact will not accept your approach, dear Felix”, is not of normative relevance for the basic principles of justice, which do not depend on majorities or empirical consensus. Nor does the expectable Marxist question “why don’t we start with equality, not with liberty” prove that I am wrong in my assumptions. First of all, the idea of equal liberty and (as we will see) equal basic (!) preconditions of liberty already includes major elements of liberty (but justifies them with respect to the autonomy of human beings without treating men like objects in need of paternalizing). Second, similar opportunities for all human beings are also implied by equal liberty (however, strictly equal opportunity will remain an illusion). Third, more equality in the sense of “material end equality” (following the communist example) would be very dangerous for liberty and probably would not even help the poor, because you need incentives for the high performers in order to generate the wealth to distribute later on.

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4 Sustainable Liberty

Now, let’s get back to my own theoretical approach. From dignity and impartiality follow some more principles, as we have already seen: in particular that a fair constitution has to be based upon a maximum of equal liberties of the individuals. But what is the exact content of justice – what does liberty (or its preconditions) exactly mean? My first point is: Our liberty or freedom, understood as right to self-development (including especially economic self-development) – which is classic liberal liberty – may be right in a way and may also be important. But the people of the southern hemisphere and the people of future generations as well have the universal justified right to equal liberty, as the future will be the lifetime of other human beings who will therewith be the subjects of human rights. And rights, which will definitely arise in the future, have to be respected already today. Why? (a) The category “justification/ rationality” leads to a duty to respect everybody, as we have seen above, since members of future generations are possible discussion partners insofar as they can disprove my arguments and my justifications, too. To put it in other words: It would not make sense to say “if we prevent everybody sitting over there who might come here today or tomorrow from entering the room, we would see that my thesis XY is well justified” – justification therefore implies respect for everybody who might be able to prove my thesis XY wrong one day. (b) If I affect the basis of existence in a way that this action leads to a situation where liberty from adverse effects on the margin of existence, life and health cannot be guaranteed anymore, I will wreak havoc in the future. Thus the concerned rights would not achieve what human liberty has to achieve: to ensure a secure protection against adverse effects. By the way, this does not imply a right to be born, and it does not contain any “imperative of the preservation of mankind” (Hans Jonas), since such an imperative would be very difficult to justify without dogmatism, naturalistic fallacies, collectivism, etc. The whole approach only says something about human beings that will be born – and at least some will definitely be born in the future. Exactly the same two arguments (as for intergenerational justice) are valid when it comes to global justice (which, as opposed to universal justice, does not refer to rules in societies, but between societies): the right to equal liberty has to be applied exactly where jeopardy is threatening – and it is at risk increasingly beyond generations and beyond national borders. This is an interpretation of constitutional liberty. But it also includes some more important aspects, and it’s important for me that they are aspects of liberty (and in my opinion it’s much more precise than some kind of “right to sustainable development”). All these new elements define what is meant by a new concept 

In my opinion, this question is not really answered in the classical environmental books like Jonas 1979 or Brown Weiss 1989. The existing theories of global justice seem to be much more elaborated than the theories of intergenerational justice; see e.g. Buchanan 2004.

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of liberty respectively by sustainable liberty. Usually it is said, according to the principle of liberty (or freedom) that each person can decide on their own how they would like to live. This is the classical interpretation of freedom. Of course, it is correct in a way – but nevertheless it stands in need of amendment. Liberty/ freedom must also include other important aspects. In particular, the right of liberty also includes the basic physical conditions of liberty – hence a right not only to a monetary minimum living wage, but also to stable basis of resources and accordant global climate. Why? Because without them no equal liberty can exist. It is a self-contradiction to guarantee freedom but to allow at the same time the destruction of its vital basis. Of course there are also “further” conditions of liberty, for instance the preservation of biodiversity, but this preservation should not be a subjective right, but a part of objective law, as the suability of all conditions of liberty would damage liberty itself. Consequently, protecting future generations and people living on other continents (who tend to be the first victims of climate change) e.g. by raising eco taxes on energy is a matter of freedom! And there is one more aspect which shows that eco taxes do not endanger freedom, but protect it: Liberty also has to embrace the principle of accountability – that people be held responsible for the probable consequences – in other countries, as well as in the future – of their actions. Since liberty also entails personal responsibility, also for the unpleasant consequences of one’s own way of life – freedom is the opposite of paternalism (which means that the ‘polluter pays’ principle is not a counterpart to liberty, but an aspect of it). Furthermore, liberty means that one is not only protected against public power but public power is also obliged to protect the citizens from each other. For it’s not only the state – as old liberalism and the courts usually seem to think – which is dangerous for liberty. This could be called the “multipolarity of liberty”. Especially in this point it would be very easy to show that a new interpretation of liberal democratic constitutions (or of the law of the peoples) would lead to exactly the same results as liberal democratic philosophy. Multipolarity of liberty is very important for sustainability – because if someone wants to defend his liberty against the climate change, he would have to force the state to restrict the other citizens (it is not the state which is the major pollutant). Therefore, in contrast to the jurisdiction of several constitutional courts, I think this justification also shows that “protection rights” (compared to “defending rights”) do exist and are as strong as defending rights. Of course, the protection of the basic preconditions as well as multipolar liberty can only become relevant if we partially integrate the precautionary principle in liberty, too – for subjects like climate change deal with uncertain damage. And I think we should do so – otherwise we will have irreversible damage to liberty as result. To give an example: Angela Merkel and Nicolas Sarkozy are proposing equal rights to the use of climate for each human being worldwide. This does not fit in 

See Poscher 2003, but also Rawls 1971.

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with the usual daily climate policy that we practise, but it is a good idea anyway. Europeans and North Americans just cannot continue consuming increasingly more resources (and causing much bigger harm to the global climate) than people in all other parts of the world. Indeed, strict equality is not usually the aim of liberal democracies. But with regard to basic preconditions of liberty (and a sufficiently stable global climate on the one hand and the possibility to belch out at least a small quantity of greenhouse gases, is part of the preconditions of liberty) equality is necessary. As without the basic preconditions, there is no liberty at all, and the idea of universal liberty is that every human being is entitled to liberty or freedom – and it is not possible to give everybody arbitrary rights to pollute the climate without destroying the whole system. Furthermore, also the polluter pays principle (as we have seen) is an aspect of liberty. A rich western part of the world which keeps the advantages of western way of life but externalises the costs of it to southern countries by causing climate troubles especially in the southern part of the world – that does not fit with a new concept of liberty. Therefore, modern liberal liberty (from the viewpoint of a philosophy of justice as well as from the viewpoint of a new interpretation of a liberal democratic constitutional law) has to be seen as a concept of a radical autonomy of the individuals – including a radical awareness of the limitation according to the equal autonomy of everybody, also of those persons who are far away from a spatial and temporal point of view. Consequently, we should better talk about conflicts of “liberty versus liberty” (or liberty versus the many preconditions of liberty), not of “liberty versus public interest”. I mentioned some advantages of this perspective at the beginning of my article. Collective or public interests do not really fit into the individualistic model of universal justice which I have tried to develop.10 They would be a dogmatic part of the overall theory which could not share the given affiliation of liberty, which did not work with any dogmatic starting point that can no longer be justified itself, but showed that (only) liberty is undeniable from a logical point of view. Collective interests or arguments (e.g. an “imperative of the preservation of mankind” as a collective entity) would also be part of the (authoritarian, not of the classic liberal) danger to liberty itself, which was mentioned at the beginning of this article, since you can justify more or less everything by the “public interest” (for what is the public interest exactly?). For similar reasons (authoritarianism, undefinability, unjustifiability, etc.), any binding collective concept of a “good life” is also no part of any liberal theory of justice. Universal justice in a modern liberal theoretical approach11 is the sum of what can be affiliated from liberty – and, in contrast to that, the good life is the area of questions which do not affect the liberty of more than one person. In a liberal society, as I mentioned 10 11

For more details see the books in Fn. 1.

At least in my approach – for instance, Kant, Locke, Mill, Rawls, or Habermas are not as consequent in this respect.

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earlier, everybody is entitled to define the good life for himself. But once this “definition” affects the liberty of others, the question is not a question of good life anymore but of justice. However, all these deductions apparently lead to a much more precise approach than talking about a “right to a sound environment”. Such a right cannot exist, as it is completely unclear what “sound environment” would mean. Talking about preconditions of liberty, on the other hand leads to a more or less clear definition of why and to what extent “the environment” is to be protected.



5 No Liberty Without Balancing

Since “sustainable liberty” always has to be balanced with today’s economical liberty, sustainable liberty is no problem for balance of powers and democracy (apart from the fact that, especially towards future generations, “democracy” is not a very good reason to limit their liberty anyway because they cannot vote today) – because there will be some kind of discretion we have to talk about now. Apart from that, we can learn from the aforementioned deduction of universal principles of justice that democracy might be helpful to guarantee liberty but cannot constitute a parliament which is entitled to come to completely arbitrary decisions. In fact, a differentiated balance of powers in general is the only possible way to reach a maximum of rationality, human dignity, impartiality and liberty of political decision-making. More than ever this is valid regarding the common under-representation of future interests in parliament. That a pure majority regime would be unjust is especially true when it comes to intergenerational or global justice. Democracy in Europe with its (from a temporal and spatial point of view) far-reaching decisions is no act of self-government for future or southern populations. It is more an act of dictatorship for them, as they are not part of today’s democratic process. Consequently, the negligence of future and global interests is a crucial problem of liberal democracies so far. Therefore, a “sustainability institution” which is entitled to participate in administrative and legislative procedures and which is entitled to take “future rights” to court would be helpful. What does that mean exactly? Impartiality, rationality and liberty call for strict procedural codes in legislation and administration (with the right of equal participation in different interests, including future interests) and that the facts of the matter for making the decision are correct (e.g. the impact on the air pollution that a certain legislation will probably have). Also rules for normative balancing (e.g. between property and environmental protection) can be affiliated, like e.g. the relatively bigger severity of fundamental concerns. Nevertheless, this (and not the rules for facts and procedures) is the place where you have the discretion of the legislator. But it is important that the margin of discretion is the same, whether it is an energy enterprise calling for “less climate protec-

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tion” or a citizen asking for “more climate protection”. In both cases, the courts are only responsible for a framework supervision (so far, the courts usually do not see that). This also means that an equal distribution of climate gas emissions for all living and forthcoming human beings is not absolutely obligatory.



6 No Liberty Without Rules – The “Global Marshall Plan” Idea

There are some more important things to be pointed out. Intergenerational liberty also needs some institution which – as an agent – is in charge of bringing this aspect of liberty to legislative and administrative procedures as well as to courts. And global and probably even intergenerational liberty needs some global level of politics on which it could be addressed – because the general balancing of what you can expect by your “right for a stable climate” cannot really take place on the level of a nation state. But if liberty is the first and maybe the only universal principle, political institutions have to exist exactly there and exactly in a manner which enables them to serve liberty in the best possible way – so democratic politicians are obliged to force the creation of adequate global institutions. Even apart from the point I made, nation-states alone are not very effective as regards many ecological issues – not only because they are global issues but also because of the global competition which seems to limit national ecological activities. And the usual multinational environmental agreements do not really solve this problem – as e.g. the Kyoto Protocol will prevent only about 0.1 degree Celsius of predicted global warming and, as we all know, does not contain any global eco tax system. For reasons of state sovereignty and a nation’s power to veto, the Kyoto Protocol and other multilateral environmental agreements usually just do not set up strong objectives or strict implementation regime (for the lack of strong objectives, it does not help that much that the Kyoto Protocol contains an emission trading scheme). More helpful might be a greening e.g. of the WTO. But for the weaknesses of multilateral environmental agreements the major question is not whether we can use these agreements as justification for a national environmental policy (like national eco taxes) which affects world trade. A strong national environmental policy will most likely not happen anyway. For even if WTO law (interpreted in the light of the Kyoto protocol or whatever) allowed that, the nation-state would have disadvantages in terms of global competitiveness. Therefore, maybe western states should forego in a more definitive manner. Of course, it is always said that a strong national or European climate policy would harm global competitiveness, and “it would take us nowhere if German companies just absconded to the Ukraine and continued blurting out greenhouse gases there”. But this point of view ignores the possibility of assuring a

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strong European environmental policy by border tax adjustments for imports and exports. Border tax adjustments would lead to equal environmental taxation on products produced in the EU and abroad. By that means, the EU could demonstrate to countries like China that climate protection and economic development are not incompatible at all. As a measure against a global race to the bottom with regard to environmental standards, border tax adjustments could therefore be very useful. Of course, this could only be a starting point for resolving global problems like climate change (which in the end call for activities worldwide and not only in the EU). And border tax adjustments do not avoid the necessary societal discussion of our way of life either – because they enable us to start with a strong environmental policy e.g. by making energy much more expensive etc. Therefore, and in order not to endanger economic development in southern countries, a more comprehensive approach would even be more helpful. If a protection of liberty is neither possible by national law nor by international agreements without strong objectives and strict enforcement, it follows that we need a comprehensive set of global rules of high climate standards (higher than we have them so far in Europe or North America), which impose a normative framework for the global economy and implement it effectively. These rules are to be combined with financial transfers to the developing countries and the setting-up of global institutions which are strong enough to enforce these rules. Really strict environmental – and also social – rules including compensation for southern countries could, on the one hand, allow the industrialised states to defend their social welfare system and improve their environmental standards by eliminating the danger of having disadvantages in global competition (because high social and environmental standards may raise costs for the companies), while, on the other, global standards (with financial compensations) would allow the southern countries to build up a social and environmental rule system. Such a system would protect national environmental policies. Even better, certain global environmental rules like a global eco tax could be the measure to gain the means for the compensation of southern countries. This means all in all: (a) We need ambitious climate goals; (b) an organisation which has got the power to enforce them; and (c) a set of institutions which do not just depend from sovereign nation-states, but is able to work with majority decisions. For instance, the Kyoto system does not comply with that – but the WTO system does (in a way). But in any case, it is necessary to see that liberty requires being enforced – in a world where the people act not solely impartially and respectfully (morally) but in a self-centred way as well. That’s why sustainable liberty needs distinct rules. Consider that distinct rules are liberty-protecting, not liberty-restraining; that’s maybe the most important insight we gain in the context of a new concept of liberty. Helpful in an environmental context are especially regulations and adequate price signals – if possible, on a global level.

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Bibliography Alexy 1991 Alexy, R.: Theorie der juristischen Argumentation, second edition, Frankfurt 1991 (Suhrkamp).

Alexy 1995 Alexy, R.: Recht, Vernunft, Diskurs, Frankfurt 1995 (Suhrkamp).

Alexy 2002 Alexy, R.: A Theory of Constitutional Rights, Oxford 2002 (Oxford University Press).

Buchanan 2004 Buchanan, Allen: Justice, Legitimacy, and Self-Determination, New York 2004 (Oxford University Press).

Brown Weiss 1989 Brown Weiss, E.: In Fairness to Future Generations, New York 1989 (Transnational Publishers).

Ekardt 2008 Ekardt, F.: Theorie der Nachhaltigkeit – rechtliche, ethische und politische Zugänge, Baden-Baden 2008 (Nomos).

Ekardt 2007 Ekardt, F.: Wird die Demokratie ungerecht? Politik in Zeiten der Globalisierung, Munich 2007 (C.H. Beck).

Ekardt 2005 Ekardt, F.: Das Prinzip Nachhaltigkeit – Generationengerechtigkeit und globale Gerechtigkeit, Munich 2005 (C.H. Beck).

Habermas 1996 Habermas, J.: Between Facts and Norms, Cambridge 1996 (Polity Press).

Jonas 1979 Jonas, H.: Das Prinzip Verantwortung, Frankfurt 1979 (Suhrkamp).

Poscher 2003 Poscher, R.: Grundrechte als Abwehrrechte, Tübingen 2003 (Mohr Siebeck).

Rawls 1971 Rawls, J.: A Theory of Justice, Cambridge/ Mass. 1971 (Cambridge University Press).

Sachverständigenrat für Umweltfragen, Umweltgutachten 2002, 2004, 2006.

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part ii sustainable development in international law chapter 2.1

Sustainable Development in International Law Marie-Claire Cordonier Segger

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“We assume a collective responsibility to advance and strengthen the interdependent and mutually reinforcing pillars of sustainable development – economic development, social development and environmental protection – at the local, national, regional and global levels.” 2002 Johannesburg Declaration, World Summit for Sustainable Development



1 Introduction

Of the 192 states that exist today, a vast majority are considered ‘developing countries’. The definition of development, however, remains unclear in fact and in law. Many economic development decisions have significant environmental and social impacts, and the notion of ‘sustainable development’ has gained currency in international debates over the past two decades since the report of the World Commission on Environment and Development, Our Common Future, was released in 1987. However, sustainable development also remains hard to define in a universal way. When states commit ‘to promote sustainable development’ in a treaty, or agree to conduct their economic relations in accordance with a ‘principle of sustainable development’, the implications of this commitment are not always clear.

*

Marie-Claire Cordonier Segger, MEM (Yale) BCL & LLB (McGill) BA Hons is Director of the Centre for International Sustainable Development Law (CISDL), a Fellow of the Lauterpacht Centre for International Law at Cambridge University, a member of the World Future Council and the International Law Association’s Committee on International Law on Sustainable Development, and directs international affairs for the Canadian Ministry of Natural Resources. She has authored and edited twelve volumes on sustainable development issues and lectures in several university law faculties, she also advises the UN and several governments on implementation of international treaties related to sustainable development. This work shares thoughts with her earlier work, including M.C. Cordonier Segger and A. Khalfan, Sustainable Development Law: Principles, Practices and Prospects (OUP, Oxford 2005). She would like to thank Carlos Iván Fuentes, LLM (McGill) Lic. (USMA-Panama) doctoral candidate & O’Brien Fellow, McGill Centre for Human Rights & Legal Pluralism; Publications Officer, CISDL; Member, Centro de Inciativas Democráticas; and Junior Partner of Fuentes y Asociados (Panama), for his insights and valuable research assistance, and Dr. Markus W. Gehring, D.Jur (Hamb) LLM (Yale) Lecturer, Cambridge University Centre for International Studies & Fellow of Robinson College; and Lead Counsel for Trade, Investment and Competition Law, CISDL, for his inspiring advice and guidance.



Crawford (2006) 727.



The World Bank, ‘World Bank list of economies (July 2007)’ accessed 29 December 2007; Organization for Economic Co-operation and Development, ‘Development Assistance Committee’s List of Recipients of Official Development Assistance’ ; United Nations Development Programme ‘2007/2008 Human Development Index rankings’ accessed 29 December 2007.

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In this chapter, the origins of sustainable development as a concept are reviewed and its meaning in international law is examined. Definitions of ‘development’, ‘sustainability’ and ‘sustained yield’ in current literature are discussed, along with their inception in natural resource management and economics. The international concept of sustainable development that was defined and developed through the 1987 Brundtland Report, the 1992 United Nations Conference on Environment and Development (UNCED), the 1997 United Nations General Assembly Special Session on Sustainable Development and the recent 2002 World Summit on Sustainable Development is briefly described and analyzed. In this context, it is suggested that sustainable development, as a common goal and ‘bridging concept,’ plays a role in reconciling tensions between economic growth, social development and environmental protection activities. The meaning and character of sustainable development in international law is then discussed, with emphasis on whether the concept is best described as an emerging customary principle in itself, or as an objective of international treaties and principles, and whether it has another type of ‘interstitial’ normativity.



2 Making Development ‘Sustainable’?

Sustainable development refers to State efforts to achieve progress (development), qualified by the condition that such efforts should be possible to maintain over the long term (‘sustainable’). International understanding of both concepts has evolved a great deal in recent decades, and like other important terms (peace, democracy, human rights), they can take on new meanings in different contexts. It is not straightforward to find one accepted universal definition that is appropriate for all cultures and regions of the world.



2.1 Evolving Definitions of ‘Development’

Originally, development efforts focused mainly on increasing the rate of economic growth, and development policies aimed principally at ensuring an ever-higher annual gross domestic product (GDP). In the era of post-World War II reconstruction, it was believed that modernization and economic progress would automatically lead ‘backward, traditional societies’ to attain wealth. However, attempts in the 1900s to impose one model of development on many diverse countries and cultures were not entirely successful. Fierce debates raged between those who espoused modernization and industrialization as the single path to development, and those who critiqued these theories as colonial impositions leading to under-development in the global south, or the



Schuurman (1993) 11-12; Escobar (1995) 92-94.

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majority world.  In the late 1980s and 1990s, inspired by Our Common Future (the findings of the Brundtland Commission) and other international processes, a new model of development has been advanced by policy-makers, practitioners and scholars which focuses on a human-centred approach. Development is seen as an iterative process which seeks to improve human conditions and find viable livelihoods for peoples in developing countries. This view is found in the Preamble to the 1986 Declaration on the Right to Development, which defines development as “a comprehensive, economic, social and cultural process which aims at the constant improvement and well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of the benefits resulting therefrom.” While debates persist in certain contexts, most international institutions active in development theory and practice, including the United Nations Development Programme, the World Bank and the Organization for Economic Cooperation and Development (OECD), as well as many developed country international development assistance agencies, have adopted variations of this approach. Development efforts focus on poverty reduction and on the socio-economic strategies and programmes of States which seek to improve livelihoods and promote better quality of life for communities and individuals, especially in developing countries. In 2000, the Millennium Development Goals provided an important global set of targets that countries have agreed, with respect to international development. As such, development can be defined as the processes of expanding people’s choices, enabling improvements in collective and individual quality of life, and the exercise of full freedoms and rights. Indian Nobel Laureate Amartya Sen, in Development as Freedom, provides theoretical underpinnings for this approach. As he describes it, development is a process of expanding the real personal freedoms that people might enjoy. The expansion of freedoms, as Sen notes, can be analysed through recognition of the ‘instrumental’ and ‘constitutive’ roles of development (the means and the ends). There are, according to Sen, five  

Cardoso & Faletto (1979) 129-133, 150-171; Cockcroft, Frank & Johnson (1972) 32-45.

UNGA Res 4/128 (4 December 1986) UN Doc A/Res/41/128/.



For instance, the UNDP focus areas include Democratic Governance, Poverty Reduction, Crisis Prevention & Recovery, Energy & Environment and HIV/AIDS: United Nations Development Programme Focus Areas accessed 30 December 2007; the OECD works on the areas of Economy, Society, Governance, Finance, Innovation and Sustainability: OECD Topics accessed 30 December 2007.



See, e.g., United Nations Development Programme, Human Development Reports accessed 30 December 2007; see also Esteva (1992) 12-17.



United Nations Millennium Development Goals accessed 30 December 2007; see also ‘United Nations Millennium Declaration’ UNGA Res 55/2 (8 September 2000) UN Doc A/55/49.



Sen (1999) 35.

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particular instrumental freedoms,10 areas in which the individual opportunities and capabilities of citizens living in developing countries could be improved. Sen’s second category of “economic facilities” refers to the opportunities that individuals might enjoy to utilize economic resources for the purposes of consumption, production or exchange.11 There are 192 countries in the world, though only 30 members of the OECD are generally considered developed countries.12 While there are many indicators of development, the Human Development Index (HDI) is the most widely accepted. It provides a comparative measure of life expectancy, literacy, education, and standard of living among countries, focusing on improvements in human well-being rather than economic ranking. The HDI, which was developed in the 1990s by international development economists such as Sen and Pakistani economist Mahbub ul Haq, is used in the UNDP’s annual Human Development Report to indicate whether a country can be considered developed or ‘still developing,’ by estimating the average quality of life for citizens of the country. It focuses on three basic dimensions of human development; a long and healthy life (as measured by life expectancy at birth); knowledge (as measured by the adult literacy rate and the combined primary, secondary, and tertiary gross enrollment ratio); and a decent standard of living (as measured by the log of GDP per capita at purchasing power parity in USD). Each year, UN member states are listed and ranked according to these indicators. A HDI of 0.8 or more is considered to represent a high level of development, and is found in all developed countries, including North America, Western Europe, Oceania, and Eastern Asia, as well as certain developing countries. However, over 4 billion people live in countries ranking below 0.8 on the HDI. Indeed, according to the 2006 UNDP Human Development Report, the grand majority of the world’s population presently lives in developing countries – at least 114 countries. Further, a HDI ranking below 0.5 represents very low development. There were 31 countries in this category, with 28 located in Africa, representing 568 million people. As noted in the 2006 Human Development Report, global HDI is presently in stagnation, as the continued improvement of developed countries is offset by general decline in the developing world. As such, a great deal remains to be done.

10

Ibid. 38 (the five sub-categories are (1) political freedoms, (2) economic facilities, (3) social opportunities, (4) transparency guarantees and (5) protective security).

11

Ibid. 39.

12

As testimony to the evolving nature of development, in May 2007, OECD countries agreed to invite Chile, Estonia, Israel, Russia and Slovenia to open discussions for membership of the Organisation and offered enhanced engagement, with a view to possible membership, to Brazil, China, India, Indonesia and South Africa.

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2.2 Origins of ‘Sustainable Development’

While development means much more than mere economic growth, growth (measured in increases of per capita GDP) is still a central factor in development theory, indicators and practice. Such a central focus on economic growth, however, has been subject to considerable international debate. Certain critiques were ethical – disagreement with the anthropocentric and utilitarian nature of the development concept, as it focuses on using the earth’s resources to improve only human quality of life, rather than to improve conditions for all species of life on earth.13 This issue is important, but not the focus of this chapter. A second important critique has emerged in global debates on the nature of development. The concern is that if populations continue to increase and all human beings adopt the extraction, production, consumption and pollution patterns that are currently common in developed countries, humanity will quickly exceed the carrying capacity of the world’s resources, leading to collapse. In short, this view suggests, current models of economic development are unsustainable. They cannot be maintained and hence their benefits will not last over time. This sustainability critique was initially brought forward by developed country scientists, economists and environmentalists, but the arguments quickly gained political currency and became reflected in international discourse. They were quickly countered by developing countries. As States hold sovereignty over their own natural resources, most developing countries were unwilling to accept internationally imposed limits on the exploitation of these resources. They argued that if developed countries achieved their present standard of living due to exploitation of resources (unsustainable or not), it is unworkable to seek to prevent developing countries from adopting the same patterns, no matter the impact on the environment or long term global survival. This was, essentially, a claim of inequity. In some UNGA debates, it has been described as a ‘right to development’.14 In certain sectors of natural resource development, where the common resource has a clear transboundary nature and can be studied scientifically (such as fish stocks, oceans and perhaps shared watercourses), the potential for depletion and collapse creates a very practical imperative for States to negotiate rational common management of the resource itself. But in other areas, particularly where impacts are diffuse, global and cumulative over time (such as depletion of the common atmosphere, loss of global biological diversity, depletion of 13

The first concern, which relates to ethics, and the need for greater recognition of the intrinsic worth of all species of life, is common to many cultures and continues to be a basis for critiques of development decisions. It is often an objective of national and international environmental law on the conservation and preservation of nature, and protection of endangered species.

14

‘Declaration on the Establishment of a New International Economic Order’ UNGA Res 3201 (S-VI) (1 May 1974) UN Doc A/Res/3201(S-VI); see also ‘Declaration on the Right to Development’ UNGA Res 41/128 (4 December 1986) UN Doc A/Res/41/128.

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soil or seed resources) and result from many economic development decisions or systems, it is much more difficult to find a common starting point and develop an agreement on the goal of these new management regimes. The global concept of sustainable development emerged in the 1980s as a way to bridge between these deadlocked views in developed and developing countries, and to address these concerns about the long term sustainability of international, national and local development policy objectives. In its simplest form, the concept of ‘sustainable development’ provides a common global objective, which permits States to cooperatively design policies to improve the quality of life of their populations in ways that have the potential to last over the long term. The evolution of the concept is not without international legal relevance. Indeed, over the same period, States have reaffirmed a joint commitment to sustainable development through international policy-making processes, and conducted negotiations in particular areas which have resulted in international law. In order to understand what sustainable development means, and whether there is an international consensus on its principal elements and scope, it is useful to trace the origins of the concept, and the main debates about it in international relations. This timeline will provide a basis to put forward a stipulated definition of ‘sustainable development’ as it is currently understood, in order to consider the status of sustainable development in international law.



2.2.1 Prior to the 1987 Report of the UN Commission on Environment and Development

The term ‘sustainable development’ is first documented in laws governing forest industry management practices (Forstordnungen) in Europe toward the end of the 18th century.15 According to these laws, only as much of the forest was permitted to be harvested as would grow again each year, so that the forest as a whole (the natural capital stocks) would be maintained. Gifford Pinchot, a noted American forester who founded the Yale School of Forestry in the early 1900s, later built on these ideas to advance a strategy of ‘wise use’ of natural resources. As such, it is important to note that the concept of sustainable development, from inception, did not involve stopping economic activity but rather a re-direction of such activity, in order to ensure the potential for longterm, sustained yields.16 The need for societies to develop while living within certain environmental limits has been recognised since ancient times, across diverse civilisations.17 15

See Lexikon der Nachhaltigkeit accessed 29 December 2007.

16 17

Pearce and Turner (1990) 6-7.

See Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Separate Opinion of Vice President Weeramantry) where the concept of sustainable development is traced to the practices of

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However, global concern about the direction of economic development practices increased dramatically in the recent century.18 As noted in the writings early political economists Thomas Malthus and David Ricardo, in the early 1900s concerns were raised about the prospect for economic growth to continue over the long-term. As Malthus argued, partly in reaction to the ‘social contract’ philosophies of Jean-Jacques Rousseau and others, there exists a danger that populations could simply continue to increase until diminishing returns from agricultural production, due to the fixed quantity of land, forces standards of living down to subsistence levels (or worse).19 Similarly, as Ricardo noted, economic growth will be limited by the scarcity of natural resources, hence effective conservation measures are essential if human survival is to be assured.20 These early debates on the sustainability of development patterns gained currency and began to influence public opinion in many countries. The discourse focused at first on the need to preserve natural resources, flora and fauna. In 1962, the UN General Assembly, building upon an earlier 1961 UNESCO statement, passed a Resolution that called for natural resource, flora and fauna protection measures to be taken at the earliest possible moment simultaneously with economic development, noted that such development may jeopardize irreplaceable natural resources, flora and fauna, underlined the importance of economic development and the need for ‘rational use’ of natural resources, and called for fullest technical assistance and cooperation to be provided to developing countries in this respect.21 Concern continued to build. In 1972, a seminal report, ‘Limits to Growth’ was released by the Club of Rome forecasting widespread economic, social and environmental collapse if countries did not learn to recognise and respect absolute limits to growth, especially population control.22 The 1973 oil crisis fuelled the debates, as did growing awareness of endangered species and large scale pollution. In many developed countries, discourse shifted to focus on the need for protection of the environment, more broadly. Many national environmental authorities were established at this time. In 1972, the United Nations called an international Conference on the Human Environment (UNCHE), which resulted in the Stockholm Declaration on the Human Environment,23 the creation of the United Nations Environment Programme, and increased impetus to agree on certain multilateral environancient tribes in Sri-Lanka, Eastern Africa, America and Europe, and in Islamic legal traditions. 18

See e.g. Human Development Reports (n 7).

19

Wrigley & Souden (1986) 9.

20 21

Ricardo (1965) 55-57.

‘Economic Development and the Conservation of Nature’ UNGA Res 1831 (XVII) (18 December 1962) UN Doc A/Res/XVII/1831.

22 23

Pearce & Turner (1990) 6-7.

‘Stockholm Declaration’ UN Conference on the Human Environment (16 June 1972) UN Doc A/Conf 48/14/Rev.1, 11 ILM 1461 (1972); for discussion, see, e.g., Meyers & Muller (1996); see Geisinger (1999)

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mental agreements (MEAs) such as the 1973 Convention on International Trade in Endangered Species (CITES).24 The Stockholm Declaration recognizes, in Principle 14, the need to reconcile conflicts “between the needs of development and the need to protect and improve the environment.” Several elements of the Declaration underline the deep divides between developed and developing countries on a global environmental protection agenda. For instance, States agreed in Principle 11 that the “environmental policies of all States should enhance and not adversely affect the present or future development potential of developing countries…” and in Principle 23 demand that “…it will be essential in all cases to consider the systems of values prevailing in each country, and the extent of the applicability of standards which are valid for the most advanced countries but which may be inappropriate and of unwarranted social cost for the developing countries.” 25 By the release of the 1980 World Conservation Strategy of the International Union for the Conservation of Nature (IUCN), which defines sustainable development as “the modification of the biosphere and the application of human, financial, living and non-living resources to satisfy human needs and improve the quality of human life,” the term had become recognised at the global level.26 The World Charter for Nature, adopted by the UN General Assembly two years later, calls for ‘optimum sustainable productivity,’ affirming that in “formulating long-term plans for economic development, population growth and the improvement of standards of living, due account shall be taken of the long-term capacity of natural systems to ensure the subsistence and settlement of the populations concerned, recognizing that this capacity may be enhanced through science and technology.”27 In 1983, responding to increasingly heated debates between developed and developing countries, the United Nations General Assembly established the World Commission on the Environment and Development (WCED). While UN GA Resolution A/38/161 on the Process of Preparation of the Environmental Perspective to the Year 2000 and Beyond was understandably focused on the environment, the UNGA required equal representation of developing and developed countries on the special Commission, and significantly, directed the Commission to report both to the UNEP Governing Council and to the UNGA 24

Convention on International Trade in Endangered Species of Wild Fauna and Flora (adopted 3 March 1973, entered into force 1 July 1975) 993 U.N.T.S 243, 12 I.L.M. 1085.

25

Stockholm Declaration (n 23).

26

It contained a section titled ‘Towards Sustainable Development’ which linked ecological destruction with poverty, population pressure, social inequity and trade relationships, laying out the need for a new international development strategy which could establish a more dynamic and stable world economy, stimulate accelerating economic growth, counter the worst impacts of poverty and promote greater equity.

27

‘World Charter for Nature’ UNGA Res 37/7 (28 October 1982) UN Doc A/Res/37/7, (1983) 22 ILM 455 [8].

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itself. The Resolution referred specifically to the need for sustainable development in the terms of reference for the Commission, which included: “(a) To propose long-term environmental strategies for achieving sustainable development to the year 2000 and beyond; (b) To recommend ways in which concern for the environment may be translated into greater co-operation among developing countries and between countries at different stages of economic and social development and lead to the achievement of common and mutually supportive objectives which take account of the interrelationships between people, resources, environment and development; (c) To consider ways and means by which the international community can deal more effectively with environmental concerns, in the light of the other recommendations in its report; (d) To help to define shared perceptions of long-term environmental issues and of the appropriate efforts needed…”28

The WCED, chaired by Prime Minister Gro Harlem Brundtland of Norway, embarked on a global series of consultations and through an Experts Group on Environmental Law also designed a series of legal principles and recommendation on environmental protection and sustainable development, which will be discussed later in this chapter. In 1987, the Commission delivered its Report to the UNGA, Our Common Future. 29 The most generally accepted definition of sustainable development is found in this ‘Brundtland Report’ where it is defined as “…development that meets the needs of the present without compromising the ability of future generations to meet their own needs,”30 which was drafted by a small working group of the World Commission in two hours.31 The Brundtland Report found that the critical objectives for environment and development policies, which “follow from the need for sustainable development must include preserving peace, reviving growth and changing its quality, remedying the problems of poverty and satisfying human needs, addressing the problems of population growth and of conserving and enhancing the resource base, reorienting technology and managing risk, and merging environment and economics in decisionmaking.” The Brundtland definition of sustainable development, and the contents of the Report, were accepted by the UNGA in Resolution 42/187, ‘Report of the 28

‘Process of preparation of the Environmental Perspective to the Year 2000 and Beyond, Meeting no. 102’ UNGA Res. 38/161 (19 December 1983) UN Doc A/RES/38/161.

29 30 31

World Commission on Environment and Development, Our Common Future (OUP, Oxford 1987) ix.

Ibid. 43.

Interview with Prof. Hans-Christian Bugge, University of Oslo Faculty of Law, and former legal staff to the World Commission, notes on file with author.

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World Commission on Environment and Development’, which reiterates the concerns of the UNGA about the “accelerating deterioration of the human environment and natural resources and the consequences of that deterioration for economic and social development,” and states that “Believing that sustainable development, which implies meeting the needs of the present without compromising the ability of future generations to meet their own needs, should become a central guiding principle of the United Nations, Governments and private institutions, organizations and enterprises…”

The Resolution recognized a “common interest of all countries to pursue policies aimed at sustainable and environmentally sound development” – differentiating the two. It also noted the importance of “a reorientation of national and international policies towards sustainable development patterns” and emphasized “the need for a new approach to economic growth, as an essential prerequisite for eradication of poverty and for enhancing the resource base on which present and future generations depend.” Significantly, the UNGA also agreed with the Commission that “while seeking to remedy existing environmental problems, it is imperative to influence the sources of those problems in human activity, and economic activity in particular, and thus to provide for sustainable development”, orienting the focus of future work on sustainable development toward economic activities. Following the recommendations of the Report, the UNGA agreed that “an equitable sharing of the environmental costs and benefits of economic development between and within countries and between present and future generations is a key to achieving sustainable development”, and called upon all Governments to “ask their central and sectoral economic agencies to ensure that their policies, programmes and budgets encourage sustainable development and to strengthen the role of their environmental and natural resource agencies in advising and assisting central and sectoral agencies in that task.” It also called upon the “governing bodies of the organs, organizations and programmes of the United Nations system to review their policies, programmes, budgets and activities aimed at contributing to sustainable development” and upon “other relevant multilateral development assistance and financial institutions to commit their institutions more fully to pursuing sustainable development in establishing their policies and programmes in accordance with the national development plans, priorities and objectives established by the recipient Governments themselves…” Finally, the Resolution requested the “Secretary-General, through the appropriate existing mechanisms, including the Administrative Committee on Co-ordination, to review and co-ordinate on a regular basis the efforts of all the organs, organizations and bodies of the United Nations system to pursue

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sustainable development, and to report thereon to the General Assembly through the Governing Council of the United Nations.” A few specific points should be highlighted with regards to both this definition, and the UNGA Resolution which adopted it. First, the Resolution differentiates between the objective of sustainable development and the objective of environmental protection, though it considers them linked. In the mandates that it sets out, both the UNEP and environment ministries on one hand, and the ECOSOC, other development institutions of the UN and economic ministries on the other, are tasked with different specific duties. Second, the Brundtland definition grounds the need for sustainable development with a claim for equitable opportunities for development between and among generations, rather than, for instance, a claim about the need to prevent environmental damage as such.32 It focuses on ‘needs’, especially the essential needs of the world’s poor, to which overriding priority should be given.33 It will be argued later that these elements, as the concept has evolved, have provided a basis to integrate a stronger social and human rights aspect into the concept of sustainable development. Third, the Report found that there are ‘carrying capacity’ limits to development which must be understood and respected, indeed, it showed that some of these limits were already being stretched nearly to breaking point in the 1980s. However, these limits are imposed not by the actual environment per se, which is always changing, but instead by the current state of technology and social organization on the environment’s ability to meet human needs. Overall, the Resolution makes it clear that in 1987, the UNGA did not see the concept of sustainable development as merely a ‘compromise term’ for more environmentally sound exploitation of natural resources, or a softer, more ‘development-friendly’ way to refer to new environmental policies in developing countries. It meant a new objective for governments and the international system, a common goal to design and implement a ‘new kind of development’ in certain specific economic sectors (such as agriculture, forestry, fisheries), one that can last over the long term. It called for new efforts at international and 32 33

Brown Weiss (1989) 17-26.

Ibid. in particular, the WCED stated that: “Sustainable development must be viewed in a global context, not as just applicable in the Third World. Rather, it requires changes in the domestic and international policies of every nation. Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It contains within it two key concepts. The concept of ‘needs’, in particular, the essential needs of the world’s poor, to which overriding priority should be given; and, the idea of limitations imposed by the state of technology and social organization in the environment’s ability to meet present and future needs … Even the narrow notion of physical sustainability implies a concern for social equity between generations, a concern that must logically be extended to equity within each generation … Perceived needs are socially and culturally determined, and sustainable development requires the promotion of values that encourage consumption standards that are within the bounds of the ecological possible and to which all can reasonably aspire…” (Emphasis added).

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national levels to reorient economic programming and policies toward sustainable development. However, the Resolution also identifies the need for sustainable development to become a “central guiding principle” of the UN, governments and other institutions. The question of whether sustainable development is an objective, a principle or somehow both will be discussed in greater depth later in this chapter.



2.2.2 The 1992 United Nations Conference on the Environment and Development and the United Nations Commission on Sustainable Development

In 1992, in response to the Brundtland Report, the UN convened a global conference in Rio de Janeiro – the United Nations Conference on Environment and Development (UNCED, or the Rio ‘Earth Summit’).34 The very name of the conference reflected a change in approach since the Conference on the Human Environment in Stockholm. While the focus had once been on the human impact on the environment and assessing the relevance of the environment in terms of human need, the UNCED’s approach presented a marked contrast. Here, in accordance with the issues signalled in the Brundtland Report and the UNGA Resolution which accepted it, the focus was on development needs, and how to integrate environmental considerations into development planning and economic decision-making. In 1992, public awareness about environmental issues had reached an extremely high level, and it was also becoming clear that traditional strategies for development were not yielding adequate results in developing countries. Developed country leaders were anxious to show their political concern, and developing country leaders were increasingly frustrated with what was perceived as attempts to limit their sovereign decisions concerning the use of natural resources for development. A scene of high tensions, vigorous debates and extremely active participation from civil society, scientists, business leaders and many others, the UNCED was broadly viewed as a global success. Specific outcomes included the 1992 Rio Declaration, a short consensus declaration agreed by the Heads of State assembled in Rio; the 1992 Agenda 21, which is annexed to the Declaration and contains an extensive global action plan on specific environment and development issues; and three international treaties signed by a record number of countries: the 1992 United Nations Framework Convention on Climate Change,35 the 1992 United Nations Convention on Biological Diversity,36 and the 1994 United Nations Convention to Combat

34 35

Kiss and Shelton (1994) 67.

United Nations Framework Convention on Climate Change (opened for signature 4 June 1992, entered into force 21 March 1994) 1771 UNTS 107, 31 ILM 849.

36

United Nations Convention on Biological Diversity (opened for signature 5 June 1992, entered into force 29 December 1) 1760 UNTS 79, 143; 31 ILM 1004.

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Desertification, 37 which was only released two years later but had been negotiated in the framework of UNCED. The 1992 Rio Declaration, a short document of twenty-seven principles, has a composite character.38 These principles reflect the work of the World Commission on Environment and Development’s Experts Group on Environmental Law,39 which is discussed further in this chapter. Here, it is simply useful to note that the Rio Declaration affirms the focus on human development that is central to the concept of sustainable development, and lays out a series of ‘principles’ which can help to achieve sustainable development. It does not, significantly, provide one universal definition for the concept. However, key elements of the Rio Declaration elucidate certain normative aspects of the ‘new kind of development’ that was being contemplated by the world community. For instance, drawn from Principle 21 of the 1972 Stockholm Declaration, Principle 2 recognizes both the sovereign right of States to exploit their own resources pursuant to their own environmental and developmental policies, and their responsibility to ensure they do not cause damage to the environment of others. Further, as Lowe highlights, by focusing on the need for financial and technological assistance, and economic stability, Principles 9 and 10 in the Stockholm Declaration located “the debate on the environment clearly in the context of the international economy.”40 The Rio Declaration built on this recognition, recognizing that developed and developing countries bear common but differentiated responsibilities for sustainable development. Indeed, Principle 4 notes 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.” The Declaration also focuses on procedural techniques, such as building scientific knowledge, undertaking impact assessment and promoting public participation in decision-making, which permit governments to take environmental concerns into account in development planning. And Principle 27 declares that “States and people shall cooperate in good faith and in a spirit of partnership in the fulfillment of the principles embodied in this Declaration and in the further development of international law in the field of sustainable development.”

37

United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (opened for signature 14 October 1994, entered into force 16 December 1996) 1954 UNTS 3, 33 ILM 1328.

38

‘Rio Declaration on Environment and Development (Annex 2)’, Report of the UN Conference on Environment and Development Vol. I (13 June 1992) UN Doc A/CONF.151/26 (Vol I), (1992) 31 ILM 874; ‘Agenda 21 (Annex 2)’ in Report of the UN Conference on Environment and Development Vol. I (13 June 1992) UN Doc A/CONF.151/26 (Vol I).

39

Experts Group on Environmental Law of the World Commission on Environment and Development, Environmental Protection and Sustainable Development (Martinus Nijhoff, London 1987).

40

Lowe (2007) 253.

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Agenda 21, which was negotiated by the States engaged in the UNCED process, complements the Rio Declaration by providing an 800 page ‘blueprint’ for sustainable development. It contains hundreds of recommendations, specific to various different sectors of economic and other activities that States can undertake in order to turn the principles agreed in the Declaration into strategies and programmes. 41 The purpose of this ‘blueprint’ was to halt and reverse the effects of environmental degradation and to promote sustainable development in all countries. 42 The text of Agenda 21 comprises four sections and a preamble. Its four sections are entitled “Social and Economic Dimensions,”43 “Conservation and Management of Resources for Development,”44 “Strengthening the Role of Major Groups”45 and “Means of Implementation.”46 As will be discussed in greater detail below, Agenda 21 also noted, as means of implementation of sustainable development, the need for international action to codify and develop “international law on sustainable development.”47 When they left the Earth Summit, States had agreed on many broad recommendations and policy directions which, it was hoped, could guide environment and development decision-making in the future. However, most of the details on sustainable development goals and standards, as well as commitments meant to achieve this objective, remained to be worked out through the specific conventions signed at the UNCED, and the new institutions recommended by the Conference. 48 In particular, as will be discussed further below, the global treaties signed at the UNCED became one of the principal areas where new standards, rules and regimes helped to clarify the content of a commitment to sustainable development. The Earth Summit, therefore, contributed to global understanding of the concept of sustainable development. First, the package of outcomes (Rio Declara41

McCoy & McCully (1993) 29.

42 43

Robinson (1993).

Containing chapters on international co-operation to accelerate sustainable development in developing countries, poverty, consumption patterns, demographic dynamics, human health, human settlements, and integrating environment and development in decision-making.

44

This section deals with the more traditional environmental problems and contains chapters concerning atmosphere, land resources, deforestation, desertification and drought, mountain ecosystems, sustainable agriculture and rural development, biological diversity, biotechnology, oceans and seas, fresh waters, toxic chemicals, hazardous wastes, solid and sewage wastes, and radioactive wastes.

45

Section 3 contains chapters pertaining to the roles in achieving sustainable development to be played by women, children and youth, indigenous people, non-governmental organisations, local authorities, workers and trade unions, business and industry, science and technology, and farmers.

46

This section addresses financing mechanisms, technology transfers, science, education, capacity building in developing countries, international institutional arrangements, international legal instruments, and information for decision-making.

47

See in particular, Agenda 21, (n 38) [39.1] – [39.10].

48

Brown Weiss (1989) 200.

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tion, Agenda 21 Plan of Action and three treaties), taken together, were designed to influence not only the policies of environmental authorities, but rather, the programmes of economic development authorities, and even the responsibilities of departments in charge of the social aspects of development such as health and education. As such, the Rio process clarified that the concept of sustainable development is different from, and goes beyond, an environmental agenda alone. While a stronger social and human rights element was not yet fully brought into the concept of sustainable development in Rio, important linkages were recognised and affirmed. Second, the Brundtland definition of sustainable development, which grounds the need for sustainable development with a claim for equitable opportunities for development between and among generations (rather than, for instance, a claim about preventing environmental damage), was adopted and affirmed in Rio. And the Rio outcomes (including several treaties) contain specific provisions in which developed countries accept responsibilities vis-à-vis developing countries in this regard. Third, the UNCED outcomes strongly reaffirm the need to adopt new techniques and procedures in development decision-making. 49 All Rio outcomes recognise and accept the Brundtland recommendations that ‘carrying capacity’ limits to development which must be understood and respected, indeed, they underline that some of these limits were reached in the early 1990s. However, the focus of policy-making and international cooperation to address this challenge was further investment into new technology and new forms of social organization in order to permit new and different development. The outcomes of Rio cannot be described as a global deal to forego unsustainable development in exchange for a commitment to invest in sustainable development. However, the Rio Declaration, Agenda 21 and the Rio treaties present considerable guidance for key sectors of national economies, containing commitments from developed countries to provide cooperation and technical assistance in these areas. This premise and promise underpinned the consensus on sustainable development in Rio. Two important follow-up mechanisms were recommended by the Brundtland Report and Agenda 21. First, the UNCED recommended the creation of 49

Ibid. In particular, the WCED stated that: “Sustainable development must be viewed in a global context, not as just applicable in the Third World. Rather, it requires changes in the domestic and international policies of every nation. Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It contains within it two key concepts. The concept of ‘needs’, in particular, the essential needs of the world’s poor, to which overriding priority should be given; and, the idea of limitations imposed by the state of technology and social organization in the environment’s ability to meet present and future needs … Even the narrow notion of physical sustainability implies a concern for social equity between generations, a concern that must logically be extended to equity within each generation … Perceived needs are socially and culturally determined, and sustainable development requires the promotion of values that encourage consumption standards that are within the bounds of the ecological possible and to which all can reasonably aspire…” (Emphasis added).

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a global environmental fund which would support the incremental costs of ensuring that development initiatives were also environmentally sound, in four main areas agreed at the Rio Earth Summit. Second, the UNCED suggested creating a new UN Commission to carry the international sustainable development agenda forward. Its purpose would be to ensure the effective follow-up of decisions made at the Earth Summit, to enhance international co-operation toward integration of environment and development, and to examine progress in the implementation of Agenda 21.50 It was meant to address questions of sustainable development which went beyond cooperation on environmental issues, as these were being undertaken by the UN Environment Programme. The UN responded by creating a Global Environment Facility (GEF), hosted by the World Bank, the UNEP and the UNDP (as implementing agencies), which was funded by voluntary contributions from States. The UN GA also created the United Nations Commission for Sustainable Development (CSD) on November 25, 1992.51 Its membership was limited to 53 countries each year on a rotational basis among all UN Members States, with non-members of the Committee having observer status.52 Meeting on a yearly basis, the UN CSD reviews implementation of the Agenda 21 at national, regional and international levels. In this manner, the UN CSD addresses all chapters every three years.53 If an issue requires a stronger legal framework, initial discussions might take place at UN CSD, but the question is then designated to an appropriate body to negotiate legally binding actions. After Rio, the UN CSD mandate was fairly broad.54 The UN CSD made some progress over the next decade, but also faced many challenges. In the years of the UN CSD’s operations between 1992 and 2002, several critiques were raised by developing countries and others. These 50 51

Agenda 21 (n 38) 38.11.

Mccoy & Mccully (1993) 45; Robinson (1993) 655.

52

The allocation of seats is 13 from Africa, 11 from Asia, 6 from Eastern Europe, 10 from Latin America and the Caribbean and 13 from Western Europe and North America. The Secretariat is the Division of Sustainable Development in the UN Department of Economic and Social Affairs (DESA). One of the interesting aspects of elections to the CSD is that they have been actively pursued by countries, unlike some other UN Commissions.

53

Ibid.

54

See ‘Establishment of the Commission on Sustainable Development’ UNESC Res 1993/207 (12 February 1993) UN Doc E/1993/207; ‘Institutional arrangements to follow up the United Nations Conference on Environment and Development’ UNGA Res 47/191 (29 January 1993) UN Doc A/RES/47/191 [3]-[5]; the mandate includes: to monitor progress on the implementation of Agenda 21 and activities related to the integration of environmental and developmental goals by governments, NGOs, and other UN bodies; to monitor progress towards the target of 0.7% GNP from developed countries for Overseas Development Aid; to review the adequacy of financing and the transfer of technologies as outlined in Agenda 21; to enhance dialogue with NGOs, the independent sector, and other entities outside the UN system, within the UN framework; and to provide recommendations to the General Assembly through the Economic and Social Council (ECOSOC). Mccoy & Mccully (1993) 45.

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had expected the UN CSD to provide an effective body to monitor progress towards the target of 0.7% GNP, ensuring adequate financing and the transfer of sustainable-development related technologies, but this was perceived not to have happened adequately. Rather, the UN CSD looked at finance and technology transfer themes in isolation from issues that might have enabled an effective argument for new funds. In addition, while occasionally development, transport, energy or agriculture Ministers would attend if a relevant sector was being discussed, UN CSD was not seriously attended by Ministers with budgets to deliver the additional financing for sustainable development that had been promised. This raised critique: the UN CSD was described as a ‘talk shop’ with excessive focus on environmental interests, without enough participation of development authorities, and with limited machinery for implementation. However, as Dodds argues, by serving as an important forum to build cooperation and exchange information, the UN CSD actually led the development of many international sustainable development policies and ‘soft law’ instruments in the first decade of its mandate.55 In addition, the involvement of major groups at the UN CSD increased each year, with innovative formal and informal participation procedures being developed.56 In essence, the UN CSD did provide space for the essential cross-sectoral dialogue, coordination and eventual cooperation which laid the groundwork of an epistemic community for sustainable development. Between 1992 and 2002, many countries also began to implement specific commitments on sustainable development from the Rio outcomes. For instance, dozens of governments from all regions of the world developed national or subnational Agenda 21s, authorised special bodies to implement Agenda 21,57 or even 55

It produced recommendations to codify Prior Informed Consent procedures (1994); the establishment of an Inter Governmental Panel on Forests (1995) and an International Forum on Forests (1997); support the Washington Global Plan of Action on protecting the marine environment from land-based activities (1996); the replenishment of the Global Environmental Facility (GEF) (1997); setting a firm date of 2002 for governments to produce their National Sustainable Development Strategies (1997); establishment of a new process in the General Assembly to discuss oceans (1999); agreement that new consumer guidelines would include sustainable development (1999); and development of an International Work Programme on Sustainable Tourism (1999).

56

In 1993, civil society groups gained rights of participation in informal and formal meetings and being allowed to speak. In 1994, NGOs were granted the right to ask their governments questions on their national presentations in front of their peer groups. In 1997, Dialogue Sessions were introduced – as a series of 5 half-day Major Group presentations for ministers and officials, and representatives of Major Groups were invited to speak at the Heads of State meeting of the UN General Assembly Special Session for the first time. In 1999, Dialogue Session outcomes were included by the UN CSD Chair as part of the materials for Ministerial discussions, and as part of official UN CSD Intersessional documents for governments to draw upon in formulating their positions.

57

UN CSD, ‘National Information Report of the Secretary-General’ UNSEC Rep (5 March 1996) UN Doc E/CN.17/1996/19 (This document consists of a table summarising national level co-ordination of

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negotiated regional blueprints for sustainable development, such as the 1996 Santa Cruz de la Sierra Summit of the Americas on Sustainable Development for the Organization of American States, or indeed the complex treaty processes of the European Union. Further, international organisations adopted sustainable development policies or objectives through their own internal decision-making procedures. These included international economic development institutions such as the World Bank, the Organisation for Economic Cooperation and Development, the United Nations regional economic commissions, and the regional development banks, in addition to environmental organisations such as the World Conservation Union (IUCN) and the UNEP. Many of these institutions have begun actively working to implement particular recommendations from the UNCED, undertaking programmes on the identification of scientific “indicators” for measuring progress towards sustainable development;58 on the design of operational guidelines which can curb worst excesses in development processes; on identification and marketing of more ‘sustainable’ goods and services; and helping to define the ‘needs’ of present and future generations.



2.2.3 The 1997 UN General Assembly Special Session on Sustainable Development

In 1997, a special session of the United Nations General Assembly, the ‘Earth Summit+5’, was held in New York to review progress toward the objectives set in Rio. The session was attended by heads of state and governments from across the world. A relatively modest event, it reviewed and appraised implementation of Agenda 21 and other commitments adopted by the 1992 Earth Summit. It sought to assess global progress made in sustainable development since Rio; to demonstrate the effectiveness of sustainable development by highlighting ‘success stories’ from around the world; to identify reasons why certain goals set in Rio had been met and suggest corrective action; to highlight special issues and to identify priorities for future action. The 1997 UNGASS called on governments, international organizations and major groups to renew their commitment to sustainable development. Formal mechanisms engaged civil society groups, through the ‘major groups’ identiactions pursuant to Agenda 21, and a matrix summarising national priorities assigned to the various issues and current status. According to CSD, nations having taken these steps towards implementation include Australia, Benin, Belgium, Cameroon, Cuba, Canada, China, Egypt, Germany, Italy, Korea, Malaysia, Mongolia, New Zealand, Netherlands, Norway, Niger, Philippines, Portugal, Peru, Senegal, Switzerland, Sweden, United Kingdom, and Zaire. In addition, over 55 nations are submitting reports to the CSD on Agenda 21 implementation). 58

It not always clear that ‘needs’ are self-evident or capable of being discerned, and it is extremely difficult to discern how development can take place without compromising the ability of future generations to meet these needs; Trzyna (1995),23.

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fied in Agenda 21, in direct dialogue with State representatives, with space in the official programme. In the resulting Declaration, the Programme of Further Action to Implement Agenda 21, priorities were focused on particular sectors and issues where further work was needed, such as finance, technology transfer, patterns of production and consumption, use of energy and transportation, and scarcity of freshwater. The focus was not on further definition of the concept of sustainable development, but rather on assessing progress since Rio, and calling attention to areas where implementation of Agenda 21 recommendations was faltering. Rather than States identifying sustainable development as a bridge between environment and development priorities, the texts began to emphasize that economic development, social development and environmental protection are three interdependent and mutually reinforcing ‘pillars’ of sustainable development.59 As such, the social development aspect of the concept gained prominence. Further, as will be discussed below, in identifying the priorities for action to promote sustainable development worldwide, the need to further strengthen and codify international law related to sustainable development was highlighted.60 The UN CSD continued to meet annually from 1997 to 2002, while States embarked on a cycle of global Conferences of Parties and global conferences. Parallel to the UNGA-led global Summits and Special Sessions which adopted non-binding policy outcomes aimed at identifying points of global consensus on sustainable development issues, a track of legally binding negotiations on specific sustainable development challenges began to emerge. The treaties themselves are discussed in greater detail below. However, it is important to note that over 180 States Parties to the 1992 UN Framework Convention on Climate Change, after five years of extremely arduous negotiations held in the context of annual Conferences of the Parties (COPs), in 1997 adopted the Kyoto Protocol for the reduction of greenhouse gases. The commitment to develop and adopt binding targets for such reductions was one of the important Rio Earth Summit outcomes. Similarly, over 180 States Parties to the 1992 UN Convention on Biological Diversity negotiated and adopted, through a parallel series of Conferences of the Parties, the Cartagena Protocol on Biosafety in 2000. This was another key commitment from Rio. And in the Conferences of the Parties to the 1994 UN Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa negotiated and adopted a series of regional and national Action Plans to define and address major challenges in this area, linked to national Poverty Reduction Strategies. Further, another three international agreements were negotiated and entered into force. In particular, the UN Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 59

‘Programme for the Further Implementation of Agenda 21’ UNGA Res S-19/2 (19 September 1997) UN Doc A/Res/S-19/2.

60

Ibid. [109] – [110].

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1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks was finally signed in 1995 and entered into force in 2001. The 2001 Stockholm Convention on Persistent Organic Pollutants and the 1998 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade were also agreed, and both entered into force in 2004. These agreements, and their contributions to our understanding of the concept of sustainable development in international law, will be discussed in further sections of this chapter. The global Conferences, hosted by the United Nations, focused on building global consensus on a new meaning of ‘development for all.’ As part of the re-conceptualization of ‘development’, the United Nations negotiated and adopted the 2000 Millennium Development Goals which provided a series of specific social, economic and environmental targets as reference points for achieving global development goals.61 Further, the World Trade Organization (WTO) hosted a Meeting of World Trade Ministers in Doha, Qatar, launched a new round of trade and economic liberalisation negotiations, the so-called 2001 ‘Doha Development Agenda’, and while negotiations were not proceeding rapidly, many States were engaged in analysing the potential impacts and opportunities of these plans.62 Finally, the International Conference on Financing for Development in Monterrey, Mexico in 2002 led to concrete commitments for new and additional developed country resources, earmarked for development spending.63 As noted informally by one leading international expert, in the leadup to the 2002 World Summit on Sustainable Development (WSSD), “Monter61

‘United Nations Reform: Measures and Proposals; and Strengthening of the United Nations System’, UNGA Res 53/239 (5 September 2000) UN Doc A/Res/53/239; See also Millennium Development Goals (n 8).

62

The results of the WTO 2002 Ministerial Meeting in Doha, Qatar included the Ministerial Declaration, a Declaration on the TRIPS Agreement and Public Health, a Decision on implementation-related issues and concerns, a Decision on Subsidies related to procedures for extensions under Article 27.4 (of the Subsidies and Countervailing Measures Agreement) for certain developing country members, a Decision on a waiver for EU-ACP Partnership Agreement, and a Decision on the EU transitional regime for banana imports; see Ministerial Declaration (14 November 2001) WT/MIN(01)/DEC/1 ; Declaration on the Trips Agreement and Public Health (20 November 2001) WT/ MIN(01)/DEC/2 ; Implementation-Related Issues and Concerns (20 November 2001) WT/MIN(01)/17 ; Procedures for Extensions under Article 27.4 for Certain Developing Country Members (20 November 2001) G/SCM/39 ; European Communities – The ACP-EC Partnership Agreement (14 November 2001) WT/MIN(01)/15 ; European Communities – Transitional Regime for the EC Autonomous Tariff Rate Quotas on Imports of Bananas (14 November 2001) WT/MIN(01)/16 .

63

Report of the International Conference on Financing for Development, UNGA Rep 198/11 (18-22 March 2002) UN Doc A/Conf.198/11; See also UNDESA, ‘Financing for Development’ accessed 31 December 2007.

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rey committed new resources, but the WSSD still needs to decide how to spend them.”64



2.2.4 The 2002 World Summit for Sustainable Development (WSSD)

The World Summit on Sustainable Development and its related programme of events, held from the 26 of August to 4 of September in 2002, brought together an estimated 45,000 participants in Johannesburg, South Africa. Over 100 heads of state, and 12,625 accredited government delegates, international experts and non-governmental organisations and media representatives attended the Summit itself, from more than 189 countries.65 Another 32,000 were represented at parallel events for business, scientists, civil society, lawyers, judges and others.66 The United Nations objectives for the Summit were to review the 1992 UN Conference on Environment and Development (UNCED) and reinvigorate global commitment to sustainable development.67 States hoped to focus on how best to implement sustainable development in a context of globalization and renewed commitments to international development assistance. The nature of the WSSD outcomes reflects this orientation. The Summit did produce a 2002 Johannesburg Declaration, and a Johannesburg Plan of Implementation. The Johannesburg Declaration, rather than laying 64

Notes from interview with Mr. Richard Ballhorn, Director General, Environment and Sustainable Development Affairs Bureau, Canadian Department of Foreign Affairs and International Trade, on file with author.

65

The official documents from the World Summit for Sustainable Development (WSSD) are available at: WSSD Documents accessed 1 January 2008; see also ‘Johannesburg Declaration on Sustainable Development and Johannesburg Plan of Implementation’ in Report of the World Summit on Sustainable Development (4 September 2002) UN Doc A/CONF.199/L20. ‘Agenda 21 (Annex 2)’ in Report of the UN Conference on Environment and Development Vol. I (13 June 1992) UN Doc A/CONF.151/26 (Vol I).

66

A full report is available at: ‘Earth Negotiations Bulletin’ accessed 1 January 2008.

67

In December 2000, the UN General Assembly (UNGA) decided to convene a ten-year review of progress since UNCED (A/RES/55/199). Despite ongoing efforts since the Stockholm Conference in 1972 to protect the environment and natural resources, the UNGA expressed concern about continuing deterioration. Therefore, UNGA called for the World Summit on Sustainable Development to focus on the status of Agenda 21’s implementation and the other Earth Summit outcomes. The WSSD’s mandate was to identify further measures to implement the Rio agreements, accomplishments and areas where more effort and action-oriented decisions were needed, as well as new challenges and opportunities. The WSSD was to ensure balance among economic, social and environmental concerns and reinvigorate the global commitment to sustainable development. ‘Ten-year review of progress achieved in the implementation of the outcome of the United Nations Conference on Environment and Development’ UNGA Res 55/199 (20 December 2000) UN Doc A/RES/55/199.

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out principles like the Declarations from Stockholm and Rio, simply provides a political commitment to sustainable development from heads of State.68 It outlines the path taken from UNCED to the WSSD, highlights present challenges, expresses a commitment to sustainable development, and then underscores the importance of multilateralism and emphasizes the need for States (and their international institutions), in partnership with civil society, the business community and others, to focus on the implementation of more sustainable development policies and programmes. The 2002 Johannesburg Plan of Implementation (JPOI) is designed as a framework for action to implement the commitments originally agreed at UNCED, and to address a few additional challenges that had arisen since 1992. It includes eleven chapters. After an introduction, substantive chapters cover poverty eradication; consumption and production; the natural resource base; health; small island developing States (SIDS); Africa; other regional initiatives; means of implementation; and the institutional framework (governance). The JPOI contains over thirty specific time-bound targets for action (including reaffirmations of target agreed in the Millennium Development Goals and other instruments).69 New resources were committed to the Global Environment Facility (GEF) and States agreed that efforts to address desertification would be henceforth funded by the GEF as a new focal area. Specific attention was focused on certain important priorities identified by the UN Secretary-General, in the areas of water and sanitation, energy, health, agriculture and biodiversity (the so-called ‘WEHAB’ issues). By the end of the Summit a number of the WEHAB commitments set out in the JPOI had been linked to new ‘voluntary’ partnerships and financial commitments.70 In particular, the Johannesburg outcomes built on the 1992 and 1997 changes in the procedural aspects of development decision-making. Johannesburg witnessed the launch of 180 ‘Type II Outcomes.’ These were specific sustainable development partnerships between 68

Johannesburg Declaration (n. 65) [5].

69

The other significant commitments from the meeting include: using and producing chemicals in ways that do not harm human health and the environment; reducing biodiversity loss by 2010; restoring fisheries to their maximum sustainable yields by 2015; establishing a representative network of marine protected areas by 2012; improving developing countries’ access to environmentally-sound alternatives to ozone depleting chemicals by 2010; and undertaking initiatives by 2004 to implement the Global Programme of Action for the protection of the Marine Environment from Land Based Sources.

70

For example, a number of initiatives publicized at the Summit will support the JPOI commitment to halve the proportion of people without access to sanitation by 2015 together with the Millennium Declaration Goal to halve the proportion without access to safe drinking water by 2015. The US has announced US$970 million in investments on water and sanitation projects; the EU announced its “Water for Life” initiative; and the UN has received an additional 21 water- and sanitation-related initiatives worth at least US$20 million. Similarly, the JPOI commitment on energy access will be accompanied by financial commitments from the EU (US$700 million), the US (US$43 million), and 32 separate partnership initiatives worth up to US$26 million.

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governments, civil society and industry, agreed under the auspices of the WSSD process and supported by the UNCSD, to achieve a set of measurable objectives and results focused on the implementation of sustainable development in specific areas. The number of registered implementation-focused partnerships has nearly doubled in the past five years, to 334. The WSSD process did accomplish a further task. It set in place a broadened institutional architecture for sustainable development, to further implement Agenda 21 and the WSSD outcomes, and to meet emerging sustainable development challenges.71 JPOI Chapter XI lays out a multi-tiered international architecture for sustainable development governance, through which States seek to provide a strengthened and linked system of international bodies and organisations working toward sustainable development. The framework of this sustainable development regime is organised on three principal levels: • international (including the United Nations General Assembly (UNGA), the Economic and Social Council (ECOSOC), and the United Nations Commission for Sustainable Development (UN CSD), but also other agencies and international organisations);72 • regional and sub-regional (including the United Nations Regional Commissions and other regional and sub-regional bodies, including the regional development banks), and • national (which includes different governments ministries, sub-national and local authorities). The JPOI emphasized the need to strengthen and better integrate the social, economic and environmental dimensions of sustainable development into policies and programmes on all these levels. Sustainable development governance was clearly differentiated from international environmental governance (IEG), which is addressed elsewhere in the UN system. 73 In the JPOI, the international 71

This process was initiated pursuant to a mandate from the United Nations General Assembly: ‘Ten-year review of progress’ (n. 67). ‘Draft Plan of Implementation of the World Summit on Sustainable Development’ UN Word Summit on Sustainable Development (4 September 2002) UN Doc A/CONF.199/L.3/ Add.1-13/Corr.2; see also Anaedu & Engfeldt (2002); this section shares thoughts with Cordonier Segger & Ivanova (2003).

72

Further information on the United Nations Commission on Sustainable Development and its relationship to other international organisations can be found at: UN CSD website accessed 1 January 2008; further information on the broader United Nations system of agencies, and their relationship to other international organisations, can be found at: UN website accessed 1 January 2008.

73

A decision of the UNEP governing council, addresses issues and options for strengthening international environmental governance. The decision includes: UNEP is to be greatly strengthened and given adequate, more secured financing; there is a special role for the Global Environmental Facility (GEF) in terms of financing environmental projects; coordination will be enhanced, including the further development of an Environmental Management Group (EMG) composed of relevant international organisa-

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architecture for sustainable development was broadened, existing fragmentation was recognized, and a rather complex grouping of mechanisms was identified to coordinate coherence.74 First, the JPOI encouraged collaboration between the United Nations Chief Executive Board (CEB), the UN Development Group, the Environmental Management Group (EMG) and other high level inter-agency coordinating bodies. In particular, the Secretary-General of the United Nations was asked to use the CED to further promote system-wide inter-agency cooperation and coordination on sustainable development, and to take appropriate measures to facilitate exchange of information, and to keep ECOSOC and CSD informed of actions being taken to implement Agenda 21. Second, to address existing fragmentation and segmentation of mandates, the UNGA was asked to adopt sustainable development as a key element of the overarching framework for UN activities. As such, sustainable development was made part of the mandate of the UN, and the JPOI refers directly to the contributions of different UN Agencies to sustainable development.75 It also, rather significantly, refers to the need for increased collaboration by those outside the UN system, such as the international financial institutions (IFIs) and the World Trade Organisation (WTO). Third, the JPOI also grants a stronger role to the UN ECOSOC, especially in matters of coordination. ECOSOC was asked to increase its role in overseeing system-wide coordination, and to balance integration of economic, social and environmental aspects of the United Nations policies and programmes aimed at promoting sustainable development. As such, ECOSOC is to provide coordination and integration. It was mandated to promote greater coordination, complementarity, effectiveness and efficiency of those activities of its functional commissions and its other subsidiary bodies, those relevant to the implementation of Agenda 21. tions and treaty secretariats; there will be clustering of Multilateral Environmental Agreements (MEAs) along functional and programmatic lines; the General Assembly is invited, in 2002, to consider the important but complex issue of establishing universal membership for the Governing Council/Global Ministerial Environment Forum. Further information on the United Nations Environment Programme, and the international environmental governance negotiations, can be found at: UNEP website accessed 1 January 2008; see also Cordonier Segger, Khalfan, Gehring (2002). 74

Further information on the International Conference on Financing for Development, held in Monterrey, Mexico from 18-22 March, 2002 can be found at: ECOSOC website accessed 1 January 2008.

75

The JPOI stresses that UNDP has capacity building programmes for sustainable development. It commits to strengthen cooperation among UNEP and other UN bodies and specialized agencies, the Bretton Woods institutions and the WTO, within their mandates. The UNEP, UN-Habitat, UNDP and UNCTAD are also expected to strengthen their contribution to sustainable development programmes and the implementation of Agenda 21 at all levels, particularly in the area of promoting capacity building.

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Finally, States made several changes to the struggling UN CSD in the JPOI. The WSSD mandated the UN CSD to focus on reviewing and monitoring progress in implementation of Agenda 21, and on fostering coherence of implementation, initiatives and partnerships.76 The UN CSD still develops ‘soft law’ policy recommendations, but negotiations are limited to every two years, and a limited number of themes are debated in each session. As such, after Johannesburg, the UN CSD has effectively been re-focused on a few clarified functions, and its new work program reflects these developments. A Report by the Secretary-General on the “Follow-up to Johannesburg and the Future Role of the CSD” further outlined the new role for the CSD.77 In particular, it mandated a shift in focus from reporting and supporting normative discussions to implementation, with a greater emphasis on specific sectors and mechanisms and promotion of overall integration of the three components of sustainable development. The report also highlighted the need to increase the resources of the UN CSD to serve as the coordinating body for sustainable development in the UN system. According to the JPOI, in relation to its role in facilitating implementation of Agenda 21 and the WSSD outcomes, the UN CSD should emphasize certain key approaches. First, as mentioned above, the UN CSD has a strong role in reviewing progress and promoting the further implementation of Agenda 21. Second, the UN CSD is mandated by the JPOI to serve as a focal point for discussions on progress among the Type II Partnerships. The CSD Chair and Secretariat now host ‘Partnerships Fairs’ in each CSD session.78 Third, the JPOI mandates the CSD to review capacity-building, financial assistance and transfer of technology for sustainable development, an important point for developing countries. Fourth, the JPOI mandates the CSD to provide a forum for analysis and exchange of experience on measures that assist sustainable development planning, decision-making and the implementation of sustainable development strategies. The fifth of the new functions highlighted in the JPOI at 148 is the mandate (e) to “[t]ake into account significant legal developments in the field 76

‘Governance for Sustainable Development’ accessed 1 January 2008; for more civil society and expert reviews of the functioning of the UN CSD see: The International Institute for Sustainable Development World Summit for Sustainable Development Briefing Papers accessed 1 January 2008; see also IISD website accessed 1 January 2008; CISDL website accessed 1 January 2008; for the official structure, see Johannesburg Plan of Implementation ( n. 65).

77

‘Follow-up to the World Summit on Sustainable Development and the future role of the Commission on Sustainable Development: the implementation track’ UNESC Rep 2003/2 (21 February 2003) UN Doc E/CN.17/2003/2.

78

See the Commission for Sustainable Development website at www.un.org under ‘Partnerships Fair.’ The Partnerships Fair provides a venue to hear of the progress in existing WSSD partnerships, as well as an opportunity to network, identify or launch new partnerships, and exchange lessons learned.

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of sustainable development, with due regard to the role of relevant intergovernmental bodies in promoting the implementation of Agenda 21 relating to international legal instruments and mechanisms.” This mandate will be discussed in greater detail later in this chapter. The focus on technical implementation in specific areas rather than general principles was evident in the international legal outcomes of the Summit. Unlike in the 1992 Rio ‘Earth Summit’, the Johannesburg Summit process did not produce new international treaties. Indeed, in the JPOI States specifically named over 60 existing international agreements in economic, environmental and social fields, at bi-lateral, regional and international levels – including trade agreements – all of which play a role achieving sustainable development, and mentioned more than 200 others. And ratifications announced at the Summit permitted the entry into force of the 1997 Kyoto Protocol for the implementation of the 1992 United Nations Framework Convention on Climate Change. As mentioned above, specific commitments in the JPOI resulted in the development of a dedicated area of funding within the Global Environment Facility for the implementation of the 1994 United Nations Convention to Combat Desertification and Drought, as well as the launch of negotiations within the 1992 United Nations Convention on Biological Diversity for a new regime on access to genetic resources and the sharing of its benefits, and reinforcement of the sustainable development elements of FAO negotiations on plant genetic resources for food and agriculture which later led to the FAO International Treaty on Plant Genetic Resources for Food and Agriculture. Further, the WSSD process likely provided impetus for States to complete negotiations and ratify other international agreements on sustainable development which entered into force before and after the Summit. In spite of its focus on implementation, not definitions, debates in the Johannesburg Summit did contribute certain refinements to international understanding of the concept of sustainable development, and certainly popularized it. First, the Brundtland definition of sustainable development, and its nature as a ‘new kind of development’ were reaffirmed in Johannesburg, with specific targets agreed in the JPOI that built on the Millennium Development Goals themselves. Second, the Johannesburg Summit gave strong emphasis to the need to “advance and strengthen the interdependent and mutually reinforcing pillars of sustainable development – economic development, social development and environmental protection – at the local, national, regional and global levels.” The package of outcomes (Declaration, Plan of Action and hundreds of concrete ‘Partnerships’) taken together, were clearly designed to influence not only economic and environmental authorities, but also those in charge of social issues such as human health, in a balanced way. In particular, in Johannesburg, partly at the insistence of the South African and other governments, the social and human rights aspects of the sustainable development agenda were recognised and strongly affirmed. The JPOI shifts the focus of sustainable develop-

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ment towards a more integrated social agenda, one which highlights strategies to address poverty eradication, sanitation and health, not just environmental protection and development. For instance, the JPOI mandates international ‘social development’ institutions such as the World Health Organization, the International Labour Organization and the UN Development Programme to play a strong role in sustainable development. Third, the Johannesburg Summit reinforced international recognition of certain key principles of international law on sustainable development, including the principles of common but differentiated responsibility, and openness, transparency and public participation. While efforts in the JPOI negotiations to ensure a clear and unequivocal recognition of precaution and other principles from the 1992 Rio Declaration as customary rules of international law were blocked by the USA, Australia and other persistent objectors, the JPOI does reaffirm these principles in numerous ways, and also highlights international instruments and techniques to ensure they are put into practice. As such, the Johannesburg Summit focused on how to implement sustainable development, concluding that this requires the integration and reconciliation of social, economic and environmental policies related to development. The agenda in Johannesburg combined priorities from all three sets of global regimes, to address challenges of poverty eradication; unsustainable consumption and production patterns; sustainable management of natural resources; a ‘globalizing’ world economy; and human health. It set in place a sustainable development ‘governance’ structure, which includes new clarity on the roles of international environmental, social and economic institutions, but also clearer sustainable development mandates for the UNGA, the ECOSOC and the UN CSD. And it recognised that international efforts to achieve global sustainable development had moved beyond general principles and broad conceptual debates into specific projects for joint scientific research, education and programming in specific technical areas of cooperation (through, for instance, the Type II Partnerships) and in many other cases, through particular internationally agreed legal regimes (including several global, regional and even bi-lateral treaties).



2.3 An International Meaning for ‘Sustainable Development’?

Where does this review of global policy-making processes leave us? The World Commission on Environment and Development sought to bridge between developed and developing countries in order to resolve serious problems of environmental degradation and lack of social and economic development. The concept of sustainable development provided that bridge. Over the past thirty years, there has been an extensive policy-making process related to sustainable development, including the debates and outcomes of the 1992 UNCED and the 2002 WSSD, which has engaged nearly all 192 States of the

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world. The concept of sustainable development has served to bridge deep divisions between developed and developing countries. States assumed, in Johannesburg, “a collective responsibility to advance and strengthen the interdependent and mutually reinforcing pillars of sustainable development – economic development, social development and environmental protection – at the local, national, regional and global levels.” They have highlighted certain fields of resource development and other economic activity. The specific sections on biodiversity, energy, forests, agriculture, water and fisheries which appear in every global sustainable development declaration are testimony to the focus of the sustainable development policy agenda. Relevant long-term focused development activities in these areas can involve sustaining yields, recycling, restoring or re-investing, rather than simple exploitation or preservation of a resource. More specifically for international law, building on the conclusions of the 1987 Brundtland Report, in the 1992 Agenda 21 States highlight the need for further efforts to develop and strengthen international law on sustainable development, through procedural and substantive steps. At 108, they agree that “Access to information and broad public participation in decision-making are fundamental to sustainable development. Further efforts are required to promote, in the light of country-specific conditions, the integration of environment and development policies, through appropriate legal and regulatory policies, instruments and enforcement mechanisms at the national, state, provincial and local levels…” And at 109, they note that “…it is necessary to continue the progressive development and, as and when appropriate, codification of international law related to sustainable development. Relevant bodies in which such tasks are being undertaken should cooperate and coordinate in this regard.” Further, at 110, they state that “Implementation of and compliance with commitments made under international treaties and other instruments in the field of the environment remain a priority. Implementation can be promoted by secure, sustained and predictable financial support, sufficient institutional capacity, human resources and adequate access to technology. Cooperation on implementation between States on mutually agreed terms may help reduce potential sources of conflict between States….”79 This direction was reaffirmed in the 2002 Johannesburg Declaration and Plan of Implementation, where States provided a further political commitment to sustainable development,80 building on the outcomes of other recent global events. 79

States mention “It is also important to further improve reporting and data-collection systems and to further develop appropriate compliance mechanisms and procedures, on a mutually agreed basis, to help and encourage States to fulfill all their obligations… under multilateral environmental agreements. Developing countries should be assisted to develop these tools according to country-specific conditions.” Agenda 21 (n 38) [110].

80

It further notes “14. Globalization has added a new dimension to these challenges. The rapid integration of markets, mobility of capital and significant increases in investment flows around the world have

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However, neither the 1992 Rio Declaration and Agenda 21, nor the 2002 Johannesburg Declaration and Plan of Implementation, provide one definition of sustainable development that is agreed among States. The most accepted short description continues to be the one recommended in the 1987 Brundtland Report, which was adopted by the UN General Assembly, when it stated that sustainable development “implies meeting the needs of the present without compromising the ability of future generations to meet their own needs.” This definition is not particularly helpful to determine the exact parameters of an international treaty commitment to ‘sustainable development,’ or the precise normative content of sustainable development in international law. As noted by Vaughan Lowe, how can one determine the needs of present generations? Are these needs also rights or entitlements? And how can one predict what will be the needs of generations to come?81 The world’s thousands of societies have diverse traditions and cultures, livelihoods, climates and living conditions. Economists, scientists and development scholars are working to develop the necessary indicators and instruments which might help to answer these questions in diverse conditions and contexts. However, as noted above, there is actually no single universal definition for ‘development.’ International development objectives continue to evolve, as does our understanding of sustainability for different sectors, societies and conditions. This is makes it highly unlikely that there is one globally recognised definition for what constitutes ‘sustainable development’. And indeed, in global policy-making processes, especially through the Summits in Rio and in Johannesburg, States have not agreed on one definition for sustainable development. Rather, they have focused on developing greater global consensus on how to achieve it, signing and ratifying international treaties where necessary. One international treaty actually contains an agreed definition of sustainable development; the 2002 Convention for Cooperation in the Protection and Sustainable Development of the Marine and Coastal Environment of the Northeast Pacific. At Article 3(1)(a), States adopt the following statement: “…[S]ustainable development means the process of progressive change in the quality of life of human beings, which places them as the centre and primary subjects of development, by means of economic growth with social equity and transformation of production methods and consumption patterns, sustained by the ecological balance and life support systems of the region. This process implies respect for regional, national and local ethnic and cultural diversity, and full public

opened new challenges and opportunities for the pursuit of sustainable development. But the benefits and costs of globalization are unevenly distributed, with developing countries facing special difficulties in meeting this challenge.” Johannesburg Declaration ( n. 65) [5]. 81

Lowe (1999) 27; he references further to D’Amato (1990).

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participation, peaceful coexistence in harmony with nature, without prejudice to and ensuring the quality of life of future generations.”82

With relation to ‘development’, this definition focuses on a process of improvements in quality of life for human beings. With relation to ‘sustainability’, it calls for economic growth which takes into account both social equity, and, by transforming production methods and consumption patterns, also respects the ecological balance and life support systems of a particular area. It also provides for other elements: respect for diversity, public participation, peaceful coexistence with nature, and inter-generational equity. As such, based on the prior review of the global evolution of the concept, sustainable development could essentially be defined as a new type of development that does not irreversibly deplete essential natural capital, one that reconciles social, economic and environmental policies to enable improvements in present generations’ quality of life, in a way that takes the interests of the future into account. This definition emphasizes certain aspects of the concept that have been recognised by States in the global policy-making process. First, it focuses on sustainable development as human-centred, in that it involves finding new ways to improve quality of life for people. Second, it focuses on the need to reconcile and integrate environmental protection and social development with economic development. As such, sustainable development decision-making needs to take all three sets of priorities and rules into account in a balanced way. This can be done through procedural techniques such as consultation among environment, social and economic development authorities; impact assessment; scientific collaboration and education; technical assistance and capacity building; and transparency and public participation. Third, development that is sustainable should be able to last over the long term. In order to do this, States need to determine and respect the environmental limits of ecosystems and resources. However, these limits are not static but dynamic, and the relevant time horizon depends on the resource and ecosystem in question.



3 Sustainable Development in International Law: Reconceptualizing the Debate

While the concept of sustainable development, like development (or world peace, or human rights), may have no single simple accepted universal definition, this does not require that the meaning and status of sustainable development must also remain unclear in international law. As noted 82

Convention for Cooperation in the Protection and Sustainable Development of the Marine and Coastal Environment of the Northeast Pacific (18 February 2002) accessed 1 January 2008.

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by Robert Jennings, the ICJ must be able to take note of different legal traditions and cultures, as it did in the Western Sahara case. When it does so, the ICJ is “asserting, not negating, the Grotian subjection of the totality of international relations to international law… [A]t the present juncture in the development of the international legal system it may be more important to stress the imperative need to develop international law to comprehend within itself the rich diversity of cultures, civilizations and legal traditions . . .”83 Sustainable development has been the topic of a World Summit and the subject matter of many international treaties. Sustainable development issues have also been argued before nearly all prominent international tribunals to date. In some of these treaties and decisions, sustainable development has been characterized as an emerging principle of customary law. In others, it seems to be a policy objective of international law, the object and purpose of international treaties rather than a norm in itself. It might even be characterized as something else entirely. While one does not necessarily preclude the other, the final section of this chapter discusses the differences between these views below, as a first step in a broader conversation on the nature of a commitment to sustainable development in international law, and the consequences which are believed by States to flow from that commitment.



3.1 The Legal Status of Sustainable Development

States and non-governmental organizations have argued that sustainable development is a new customary principle of international law, one that is in the process of being established as binding upon all but a few persistently objecting States.84 Scholars have suggested that it is a “general principle that states should ensure the development and use of their natural resources in a manner which is sustainable”85 stating that “there can be little doubt that the concept of sustainable development has entered the corpus of international customary law...”86 And indeed, many international treaties do appear to recognize some form of sustainable development principle, and several international tribunals have demonstrated a willingness to consider the concept in this light. Others have been less convinced of this approach, arguing that sustainable development itself is not necessarily one customary principle, as such. From this view, international law on sustainable development has mainly emerged in international treaties and accords. It can be found as a second, sometimes marginalized objective of multilateral environmental accords, phrased in different 83

Jennings (1985) 195; cited with approval by Judge C.G. Weeramantry in his Separate Opinion: Gabčíkovo-Nagymaros (n 17) [93].

84 85

Hunter, Zaelke, & Salzman (2001); Kiss & Shelton (1994); Sands (2003).

Sands (2003) 252-266.

86

See generally, ibid. 252-266.

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ways and made operational through different substantive provisions (depending on the specific problem being addressed or resource being managed). It is a common purpose (among many) of States when they sign international economic treaties, and indeed, trade treaties often now contain Preamble references to a joint commitment to promote sustainable development. It can be found in new treaties on social concerns such as corruption. And in some cases, such as recent treaties related to energy, desertification or food and agriculture, it might even be seen as a primary objective of the international agreements themselves. In this light, sustainable development is a purpose of treaty law rather than a principle in itself, though States may agree on certain principles in order to achieve their sustainable development purpose. If this were the case, the objective might, of course, still have a certain interstitial normativity when other principles come into conflict, as will be discussed below. These two views provide different pictures of the status of sustainable development in international law, and have different normative consequences. The rest of this chapter will briefly explore the differences between these approaches with reference to recent developments in international law.



3.2 A Principle of Sustainable Development Versus a Sustainable Development Purpose

To discuss whether sustainable development can be characterized as a principle of international law, the nature of legal principles – in particular customary principles of international law – must be briefly introduced, and compared to policy objectives – in particular ‘objects and purposes’ of treaties or principles. Jurisprudence debates on the nature of legal norms range far beyond the scope of this chapter. However, as Ronald Dworkin maintains, a legal obligation can exist whenever the case supporting such an obligation, in terms of binding legal principles of different sorts, is as strong that the case against it. Black letter laws reflect legal norms, but as Dworkin notes, principles, policies and other standards also have normative value.87 Principles embody legal standards or norms, but “the norms they contain are more general than commitments and do not specify particular actions”, unlike rules.88 In international law, the question of consequences that flow from characterizing a norm as a legal rule or principle was discussed in the 1903 Gentini case, which presages Dworkin’s views on the legal effect of principles and their relationship to rules, stating that a rule “is essentially practical and moreover, binding…” while a principle “expresses a general truth, which guides our action, serves as a theoretical basis for the various acts of our life, and the application

87

Dworkin (1977) 22-31.

88

Ibid. as cited in Sands (2003) 233.

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of which to reality produces a given consequence.”89 As noted by Martii Koskenniemi more recently, when “States enter an agreement, or when some behaviour is understood to turn from habit into custom, the assumption is that something that was loose and disputed crystallizes into something that is fixed and no longer negotiable.”90 A further distinction can be made between principles versus policies. As noted by Dworkin, it is possible to distinguish policies as standards that set out goals to be reached, generally improvements in some economic, political or social situation deemed desirable by the community.91 Arguments of policy justify a political decision by showing that the decision advances or protects a collective goal of the community as a whole.92 Principles, in contrast, provide normative standards to be observed because it is a requirement of justice, fairness or some other dimension of morality,93 so that arguments of principle justify a political decision by showing that the decision respects or secures some individual or group right.94 These other types of norms (principles and policies) have a dimension that rules do not – the dimension of weight and importance.95 If two rules conflict, as Dworkin argues, one of them cannot be a valid rule, but when other norms intersect (for example, if a policy and a principle conflict), those resolving the conflict must take the relative weight of each into account. ‘Policies’ are not necessarily legally binding on judges, but principles often are. This last point is important. In international law, following Dworkin’s argument, a principle could be binding upon an international tribunal or judge, while a policy would be taken into account by the tribunal, but not necessarily fulfil a normative legal function in determining the outcome. In international law, principles of Dworkin’s ‘binding’ sort can be found in treaties, but they can also be discerned as principles of international customary law. Such principles are important as they can establish obligations for all States except those which have persistently objected to a practice and its legal consequences. Article 38(1)(b) of the Statute of the International Court of Justice, which incorporated into the UN Charter by Article 92, explains the basis for recognition of customary law by an international tribunal, stating that:

89

Gentini case (Italy v. Venezuela) (1903) 10 RIAA 551, 556; as cited in Cheng (2006) 24; also cited in Sands (2003) 233.

90 91

Koskenniemi (2006) 69.

Dworkin (1977) 82-130.

92 93

Ibid. 82-130.

Ibid.22-31.

94 95

Ibid. 82-130.

Ibid. 22-31.

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“The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply... international custom, as evidence of a general practice accepted as law;”96

As such, the rules of customary international law rules can be derived from the consistent conduct of States acting in the belief that international law required them to so act.97 Jurists, to prove an international customary principle, must show State practice (by demonstrating the widespread repetition by States of similar international acts over time). Such acts must be taken by a significant number of States, and not be rejected by too many others with an interest in the matter.98 The ICJ has stated that “it might be that, even without the passage of any considerable period of time, a very widespread and representative participation in the convention might suffice of itself, provided it included states whose interest were specifically affected.”99 The ICJ has also found that it is sufficient that the conduct of States should, in general, be consistent with a customary principle, and that instance of inconsistent conduct have been generally treated as breaches of the rule rather than indications of a new rule having emerged.100 To prove that a norm has been accepted as a principle of customary international law, jurists must also show that these international acts have occurred out of sense of legal obligation (opinio juris). The ICJ, in the North Sea Continental Shelf Cases, stated in this regard: “Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a rule of law requiring it. The need for such a belief, i.e. the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitates. The states concerned must therefore feel that they are conforming to what amounts to a legal obligation.”101

Further, if a norm that is enshrined in a treaty is followed in the practice of non-parties, it can, provided that there is opinio juris, lead to the evolution of a customary rule which will be applicable between states that are not party to the

96 97

Statute of the International Court of Justice, June 26, 1945, at art. 38.1; Shaw (2003) 68-88.

Thirlway (2006) 121-127.

98

D’Amato (1971); Akehurst (1974-5); Mendelson (1999).

99

North Sea Continental Shelf (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands) (Judgement) General List No 51 & 52 [1969] ICJ 3, 8 ILM 340 [73].

100

Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Judgement) General List No 70 [1986] ICJ 14, 25 ILM 1023 [186].

101

North Sea Continental Shelf (n 99) [44].

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treaty and between parties and non-parties. This can happen even before the treaty has entered into force.102 There are two further points to be made about establishing that a concept is a principle or a rule of international customary law, even in a brief summary. First, as was demonstrated in the Ango-Norwegian Fisheries Case at the ICJ, a state can avoid being bound by a customary rule if it persistently objects to that rule.103 Second, as has been observed by the ICJ in reference to a discussion of whether a treaty norm had also been transformed into a customary principle, it is in the first place necessary “that the provision concerned should, at all events potentially, be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule…”104



3.3 Sustainable Development as a Customary Principle of International Law



3.3.1 A Fundamentally Normative Character for Sustainable Development

The bar to rapidly transform a principle agreed in a treaty into a principle accepted as customary law, as set by the ICJ in the North Sea Continental Shelf cases, is relatively high: “an indispensable requirement would be that within the period in question, short though it might be, state practice, including that of states whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked; and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.”105

As such, before a discussion of general state practice and opinio juris, there may be a ‘precondition’ which should also be addressed. To prove a norm of customary law, there is a need to show that the state practice and opinio juris has been extensive and virtually uniform in the sense of the provision invoked. This element relates to the requirement that a principle have the “fundamentally normcreating character such as could be regarded as forming the basis of a general rule.”106

102 103

T hirlway (1990).

Fisheries Case (United Kingdom v. Norway) (Judgement) General List No 5 [1951] ICJ 131, 138-139.

104 105

North Sea Continental Shelf (n 99) [41]-[42].

North Sea Continental Shelf (n 99) [43].

106

North Sea Continental Shelf (n 99) [63].

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Several legal scholars have been quite critical of whether such a precondition is needed at all in the context of treaties and custom.107 Others, such as Hans Kelsen, have noted that an international legal norm, whether derived from an international treaty or international customary law, can be understood in reference to its function.108 What would such a fundamentally norm-creating character entail? In international law, Kelsen explains, most norms have one of four functions. Either they impose an obligation on states to do something, as a command (prescriptive norms); or they impose an obligation on states not to do something, as a prohibition (prohibitive norms). They can also grant a right to a state not to do something, as an exemption (exempting norms), or grant a right to a state to do something, as a permission (permissive norms).109 Here, as observed by Vaughan Lowe, the concept of sustainable development in itself might encounter certain difficulties in being recognised as a principle of customary law. Lowe and others have argued that ‘sustainable development’ is difficult to accurately describe as a single emerging customary principle that might eventually, through demonstrable state practice and opinio juris, be accepted as binding on all states. As Gunter Handl baldly stated in 1990 “[n]ormative uncertainty, coupled with the absence of justiciable standards for review, strongly suggest that there is as yet no international legal obligation that development must be sustainable,”110 and as such “decisions on what constitutes sustainability rest primarily with individual governments.”111 Essentially, they find that sustainable development may not be sufficiently specific and normative to become a customary norm of international law, in itself.112 As Lowe notes wryly, “the argument that sustainable development is a norm of customary international law, binding on and directing the conduct of states, and which can be applied by tribunals, is not sustainable.”113 If sustainable development were proposed as a principle of customary law, there would need to be some clarity as to what a commitment “to promote sustainable development” actually prescribes, prohibits, exempts or permits States to do. A commitment to promote sustainable development should be 107

Baxter (1970) where Prof Baxter argues that the notion of norm-creating rules was redundant: “if a rule does pass into international law, it is norm-creating…” See also Villiger (1985) 190-202. But see Jennings (1981) 59-88.

108

Kelsen (1996) 1.

109 110

Ibid. 1.

See Handl (1990) (rejecting the possibility that sustainable development is a peremptory norm of international law); see also Handl (1998).

111

Boyle and Freestone (1999) 16.

112

For different views on this point, see Sands (1995); Ginthers, Denters and de Waart (1995); Commission on Sustainable Development, ‘Sustainable Development: The Challenge to International Law. Report of a Consultation held at Windsor 27 to 29 April 1993’ (1993) 2:4 R Eur Community Intl Environmental L R; Sands (1994).

113

Lowe (n 81) 30.

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specific – or at least normative enough to form the basis of a claim against a State. Just as a prohibition against armed attack or a prescription that each State controls an exclusive economic zone of 200 miles might be customary law, a commitment to sustainable development should normatively require or permit States to take (or not take) certain actions. With regards prohibitions, it does appear unlikely that there exists a blanket prohibition against developing unsustainably. Or even against actions by a State to promote unsustainable development. But perhaps sustainable development might be characterized as a permissive norm – a right of States to promote sustainable development. The principle would mean, as highlighted in Principle 4 of Article 3 of the 1992 United Nations Framework Convention on Climate Change, that States “have a right to, and should, promote sustainable development.” As noted by Wesley Hohfeld, such a permissive right, to mean more than a simple privilege, would need to impose a corresponding duty114 upon another. In this case, the other would be a State or other actor under international law. For instance, another State would be under a duty not to prevent, through their action or inaction, the sustainable development efforts of the first. If this is the meaning of a principle of sustainable development, it would be necessary to demonstrate (at a minimum) that States have accepted, over time, a prescription not to prevent the efforts of other States to promote sustainable development by integrating environmental protection into their socio-economic development processes. International tribunals have considered this issue in several ways. H.E. Judge C.G. Weeramantry, as Vice-President of the International Court of Justice, appears to argue that sustainable development is a principle of international law in his Separate Opinion in the Gabcikovo – Nagymaros Case. In particular, he stated that he considers sustainable development to be “more than a mere concept, but as a principle with normative value which is crucial to the determination of this case.”115 Indeed, as he further explains, after reviewing many international commitments: “The concept of sustainable development is thus a principle accepted not merely by the developing countries, but one which rests on a basis of worldwide acceptance. In 1987, the Brundtland Report brought the concept of sustainable development to the forefront of international attention. In 1992, the Rio Conference made it a central feature of its Declaration, and it has been a focus of attention in all questions relating to development in the developing countries. The principle of sustainable development is thus a part of modern international law by reason not only of its inescapable logical necessity, but also by reason of its wide and general acceptance by the global community.”

114 115

Newcomb Hohfeld (2001) 11-21.

Gabčíkovo-Nagymaros (n 17) p. 85 (Separate Opinion of Vice-President Weeramantry).

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Should this view be accepted, the question remains as to what such a principle permits and requires, in effect. The 2005 Iron Rhine (Belgium v. Netherlands) award of the Arbitral Tribunal struck under the auspices of the Permanent Court of Arbitration provides some guidance in this regard. In its decision, the Tribunal first recognised that: “There is considerable debate as to what, within the field of environmental law, constitutes “rules” or “principles”; what is “soft law”; and which environmental treaty law or principles have contributed to the development of customary international law. Without entering further into those controversies, the Tribunal notes that in all of these categories “environment” is broadly referred to as including air, water, land, flora and fauna, natural ecosystems and sites, human health and safety, and climate. The emerging principles, whatever their current status, make reference to conservation, management, notions of prevention and of sustainable development, and protection for future generations.”

The Tribunal then continued to explain: “Since the Stockholm Conference on the Environment in 1972 there has been a marked development of international law relating to the protection of the environment. Today, both international and EC law require the integration of appropriate environmental measures in the design and implementation of economic development activities. Principle 4 of the Rio Declaration on Environment and Development, adopted in 1992 which reflects this trend, provides that “environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.” Importantly, these emerging principles now integrate environmental protection into the development process. Environmental law and the law on development stand not as alternatives but as mutually reinforcing, integral concepts, which require that where development may cause significant harm to the environment there is a duty to prevent, or at least mitigate, such harm…. This duty, in the opinion of the Tribunal, has now become a principle of general international law. This principle applies not only in autonomous activities but also in activities undertaken in implementation of specific treaties between the Parties. The Tribunal would recall the observation of the International Court of Justice in the Gabčíkovo-Nagymaros case that “[t]his need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development”116 And in that context the Court further clarified that “new norms have to be taken into consideration, and . . . new standards given proper weight, not only when States contemplate new activities but also when continuing with

116

Gabčíkovo-Nagymaros (n 17) [140].

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activities begun in the past” (Ibid.). In the view of the Tribunal this dictum applies equally to the Iron Rhine railway.”117 (emphasis added)

This determination was directly relevant for the decision of the Tribunal in this case: “As the Tribunal has already observed above… economic development is to be reconciled with the protection of the environment, and, in so doing, new norms have to be taken into consideration, including when activities begun in the past are now expanded and upgraded.” 118 Applying the principles of international environmental law, the Tribunal … is of the view that, by analogy, where a state exercises a right under international law within the territory of another state, considerations of environmental protection also apply. The exercise of Belgium’s right of transit, as it has formulated its request, thus may well necessitate measures by the Netherlands to protect the environment to which Belgium will have to contribute as an integral element of its request. The reactivation of the Iron Rhine railway cannot be viewed in isolation from the environmental protection measures necessitated by the intended use of the railway line. These measures are to be fully integrated into the project and its costs.”119 (emphasis added).

As such, the Iron Rhine award suggests that in certain circumstances, the duty to integrate environmental protection with development is an accepted principle of international law. In this light, a ‘principle of sustainable development’ might be essentially a label for the exhortation found in Principle 4 of the Rio Declaration on Environment and Development, which provides 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.” This definition has several implications, not the least the practical application for which it was used in the Iron Rhine award. In certain contexts, as this decision shows, there is a ‘fundamentally normative’ element of the principle, in that its application persuaded the Arbitral Panel that the costs of impact assessments and mitigation measures should be borne by the Party carrying out the development (as an integral part of the reactivation of the Iron Rhine Railway), rather than by the Party through whose territory the railway would pass. The ratio of the Award suggests that a principle of sustainable development requires States to take environmental protection considerations into account in the development process. Such a principle might be extended, by States, to include cases where 117

In the Arbitration Regarding the Iron Rhine (Ijzeren Rijn) Railway (Belgium v. Netherlands), Arbitral Award of 24 May 2005, available at accessed 29 December 2007 [58]-[59].

118

Ibid. [222].

119

Ibid. [223].

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the ‘development process’ consists of defining new trade rules, or establishing new norms to govern transboundary investments. Such a principle might be weak, but it is normative. This said, surely it has limits. ‘Constituting an integral part’ is not the same as ‘becoming a trump card’. And indeed, defined this way the principle might also press States to “quid pro quo ensure that environmental protection issues (including new environmental laws) not be considered ‘in isolation’ from social and economic development priorities (or norms). And indeed, a recent decision in the International Court of Justice does suggest the outer boundary for such a principle. Positive claims based on a States’ ‘sovereign right to implement sustainable economic development projects’ were used by States in the 2006 Pulp Mills on the River Uruguay case. In pleadings on Provisional Measures of July 2006, the ICJ notes that Uruguay maintained that “maintained that the provisional measures sought by Argentina would therefore irreparably prejudice Uruguay’s sovereign right to implement sustainable economic development projects in its own territory;” and asked the Court: “…in particular to preserve its sovereign right, pending a decision of the Court on the merits of the case, to implement sustainable economic development projects on its own territory that do not, in its view, violate Uruguay’s obligations under the 1975 Statute or the anti-pollution standards of CARU;…”120

It is possible that a concern for this right of a State, which forms the outer boundary of the principle of sustainable development, was a principal element in the ICJ’s reasoning in its first Order with regards to Provisional Measures in the Pulp Mills on the River Uruguay case,121 where it stated: “… the present case highlights the importance of the need to ensure environmental protection of shared natural resources while allowing for sustainable economic development;… it is in particular necessary to bear in mind the reliance of the Parties on the quality of the water of the River Uruguay for their livelihood and economic development;… from this point of view account must be taken of the need to safeguard the continued conservation of the river environment and the rights of economic development of the riparian States;…” 122

Unlike international treaties, or clearly recognized international customary law, the 1992 Rio Declaration and the Agenda 21, along with the 2002 Johannesburg Declaration and Johannesburg Plan of Implementation are not binding. Rather, such consensus declarations by States are usually described as ‘soft law.’123 UN 120

Case Concerning Pulp Mills on the River Uruguay (Argentina V. Uruguay) (Request for the Indication of Provisional Measures: Order of 13 July 2006) General List No 135, (2006) 45 ILM 1025 [67].

121

Ibid.

122 123

Ibid [80].

A genda 21 (n 38) Ch 11, 12, 18, 20, 21 & 22. See also Brown Weiss (1989) 198, and Chinkin (1989).

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General Assembly resolutions, while they can be considered evidence of an emerging customary principle and while they can reflect treaty law, are similarly not considered legally binding as such. However, this does not mean that such consensus declarations of States are without legal relevance. Indeed, ‘soft law’ declarations may give rise to legitimate expectations, in that States, assumed to be acting in good faith when they agree to such statements, might be precluded from deliberately violating agreements or commitments assumed in soft law without notice or a least assumed to be acting in accordance with such commitments.124 In related manner, ‘soft law’ can provide evidence of emerging customary norms.125 One “concise restatement of the Trail Smelter principle coupled with an affirmation of the principle of permanent sovereignty over natural resources” noted by Lowe is Principle 21 of the 1972 Stockholm Declaration, which was re-affirmed in Principle 2 of the 1992 Rio Declaration. This Principle recognizes that: “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”

This right and its attendant responsibility were reaffirmed numerous times in the 2002 Johannesburg Plan of Implementation from the World Summit on Sustainable Development. Indeed, elements of such a right, held by indigenous peoples against their own countries, and by States against other States, also appear to be gaining explicit recognition in the recent decisions of regional human rights tribunals.126 The tension between these two principles is, nonetheless, clear, and neither of them provides a ‘sustainable development principle’ in themselves. Rather, references to a ‘principle of sustainable development’ could be a form of ‘legal shorthand’ for Principle 4 of the Rio Declaration, which states quite simply 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.” 124 125

A llot (2002) 308.

Boyle (2006) 149-153.

126

Boyle (2008); see also Inter-American Court of Human Rights Case of the Sawhoyamaxa Community (Paraguay) (2006) [137]-[141]; Inter-American Court of Human Rights Case of the Saramaka Peoples (Suriname) (2007) [93]-[95], 122, 129-132; African Commission on Human and Peoples’ Rights Case of the Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria (2002) 96 AJIL 937, 47 J African L 126 [52].

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It could be stipulated, therefore, that a principle of sustainable development simply requires that where development may cause significant harm to the environment or to societies (taking into account the strong emphasis on social elements of sustainable development in the World Summit on Sustainable Development), States have a duty to prevent, or at least mitigate, such harm as an integral part of the development process. The outer boundary of the principle would be a right to sustainable development, as an extension of a well-recognised sovereign right of States to exploit their own natural resources,127 or as the ICJ elegantly recognizes: “the need to ensure environmental protection of shared natural resources while allowing for sustainable economic development.” In this way, a principle of sustainable development, in accordance with the Brundtland Report and other global ‘soft law’ processes, could be argued to have a fundamentally normative character that is binding on States, though as a double-edged sword. It would not forbid development as such. Rather, it would require States not to prevent or frustrate each other from promoting sustainable development, and “where development may cause significant harm to the environment” would require States to take steps to address a duty “to prevent, or at least mitigate, such harm.” While the application of the principle in international law would suggest that this norm would only be relevant in a transboundary context, it should be noted that, as recognized in the international policy-making processes discussed above, ecological systems are globally and regionally inter-related in complex ways that science and technology have only begun to explore. If a State can show that it has taken measures to take environmental protection into consideration in a development process, and that it has sought to prevent, or at least mitigate, harm to the environment and the community, the State might well evoke the same principle to defend its right to sustainable development. Bounded on one side by the Iron Rhine Railway award, and on the other by the Pulp Mills on the River Uruguay order, such a principle of sustainable development might possess the fundamentally normative character to be identified as an emerging principle of customary law. However, in order to suggest that this principle has been recognised as a customary norm in international law, two elements must be shown in particular.

127

Case concerning East Timor (Portugal v. Australia) (Judgment, Dissenting Opinion of Judge Weeramantry) General List No 84, [1995] ICJ 90, 34 ILM 1581, p. 197-200; Case concerning the Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v. Iceland) (Merits, Dissenting Opinion of Judge Petrel) General List No 55, [1974] ICJ 3 p. 161; 3. Case Concerning the Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium v. Spain) (Second Phase, Separate Opinion of Judge Jessup) General List No 50, [1970] ICJ 3, p. 165-167; ‘Permanent Sovereignty over Natural Resources of Developing Countries’ UNGA Res 3016 (XXVII) (18 December 1972) UN Doc A/Res/3016 (XXVII) [1]; Schrijver (1996).

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3.3.2 General State Practice on Sustainable Development

The International Court of Justice has stressed the importance of ‘general practice’ in the construction of customary law.128 A rule of customary law must be above all “a constant and uniform usage practised by the States in question”,129 with the sole (somewhat theoretical) exception of instant custom.130 “It is how states behave in practice that forms the basis of customary law, but evidence of what a state does can be obtained of numerous sources.”131 State practice demonstrating that a principle has become part of international customary law could be discerned from many sources.132 For a principle of sustainable development, this might include broad ratification of treaties on sustainable development; the records or travaux preparatoires of international negotiations and conferences which document formal notes or statements by State representatives; votes and other acts in the UN General Assembly and other international organisations; the pleadings of states before national and international tribunals and legal opinions by government lawyers; and national legislation and the decisions of national courts. And indeed, the evidence of some form of international commitment by States to promote sustainable development is significant and weighty. There have been near-universal ratifications of treaties such as the United Nations Framework Convention on Climate Change (UNFCCC) which has 192 Parties, the United Nations Convention on Biological Diversity (UNCBD) which has 190 Parties, and the United Nations Convention to Combat Desertification and Drought (UNCCD) which has 191 Parties. As will be further discussed below, these treaties (among many others) contain significant obligations on sustainable development relating to the integration of environmental protection into the development process (and vice versa). While it is not clear whether States are integrating environmental protection and development due to their obligations under these treaties in the context of climate change, biodiversity and desertification, or simply as a general practice (which could be evidence of a customary principle), the practices themselves are certainly being undertaken. For instance, in the context of the UNCCD, States as diverse as Burundi, the Philippines and Turkey have set National Action Plans in place to establish and strengthen economic mechanisms for more sustainable natural resources management, and to promote new sustainability projects to recover land subject to desertification. 128

Case concerning Military and Paramilitary (n 100) [98].

129

Case Concerning Rights of Nationals of the United States of America in Morocco (France/United States of America) (Merits) General List No 11, [1952] ICJ 176, p. 200; Asylum Case (Colombia / Peru) (Judgment) General List No. 7, [1950] ICJ 266, p. 276-277.

130 131

C heng (1965); North Sea Continental Shelf (n 99) [43].

Shaw (2003) 78.

132

See ILC, ‘Yearbook of the International Law Commission (1950-II)’ (5 June – 29 July 1950) UN Doc A/CN.4/SER.A/1950 368-72.

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There is also evidence of State practice in the universality of official announcements from Heads of State and governments supporting and committing to sustainable development through the integration of environmental protection and socio-economic development from Stockholm, Rio and Johannesburg.133 There are records of statements and formal notes from Ministers and senior officials expressing their country’s commitments to sustainable development through fifteen years of meetings by the United Nations Commission on Sustainable Development in New York.134 The National Assessment Reports of 133

Gabriella Battaini-Dragoni, ‘Statement on behalf of the Council of Europe at the World Summit for Sustainable Development’ accessed 18 January 2008 (The Council of Europe which is committed to respect for human rights, pluralist democracy, and the rule of law therefore approaches sustainable development not only in terms of the environment but also in terms of building cohesive societies in which every individual can fully enjoy his or her civil, political, social and economic rights. Human rights and sustainable development are inextricably linked. Development is unsustainable when the rule of law and equity are absent. Similarly, human rights cannot thrive without social justice and sustainable development); Soren Christensen, ‘Statement by the Secratary General of Nordic Council of Ministers at the World Summit for Sustainable Development’ accessed 18 January 2008 (We have experienced that one of our main challenges is to connect the three pillars of economic, environmental and social sustainability and make them inter-operative. In addition many economic, environmental and social challenges are shared between neighbouring countries and will increasingly do so.); Sheikh Hamad Bin Mohammed al Sharqi,‘Statement on Behalf of the United Arab Emirates at the World Summit on Sustainable Development’ accessed 18 January 2008 (The United Arab Emirates has always recognized the importance of conserving the environmental resources, something that became one of the important bases in its developmental policies for the present and future generations. During the past three decades, the United Arab Emirates has achieved major steps in sustainable development covering economic, social and environmental fields. In addition, the United Arab Emirates has promoted investments and diversified the sources of its national income to reduce dependency on oil industry as its only source of income).

134

A rmen Baibourtian, ‘Statement by the Deputy Minister of Foreign Affairs of the Republic of Armenia at the 14th Session of the Commission on Sustainable Development’ accesed 18 January 2008 (Economic development in a context of sustainable development is being viewed under an optional correlation of economic, human and natural resources potential. (…) In this situation, the utmost priorities for the country became economic stabilization and social issues, such as poverty reduction, sustainable employment, food security and so on. In this context the measures taken by my government had to be target-oriented while addressing economic, social and environmental concerns); Wang Guangtao, ‘Statement by the Minister of Construction of the People’s Republic of China and Head of the Chinese Delegation at the High-level Segment of the 13th Session of the Commission on Sustainable Development’ accessed 18 January 2008 (The Chinese government highly values the importance of environmental protection and sustainable development and has put forth a people-centered scientific concept of development tailored to China’s needs that advocates comprehensive, coordinated and sustainable development. The government is committed to building a harmonious society enjoying a decent standard of living by implementing a balanced approach to development: balance between urban and rural development, balance among regions, balance between

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States presented to the United Nations Commission on Sustainable Development recognise sustainable development in this light, as well. Such Reports are not simply generated by a few Western or other States. For instance, the Report of Micronesia notes that as a principle, “…sustainable development entails balancing the economic, social and environmental objectives of society in decision making.”135 A series of bi-lateral treaties also provide evidence that further States are committed to sustainable development as a principle. For instance, the treaty of the Basis for Relations between Finland and the Russian Federation, calls for the mutual “implementation of the principles of justice, basic universal human values and sustainable development in accordance with the Charter of the United Nations.”136 The consolidated version of the Treaty on European Union among 27 European States also calls “to promote economic and social progress for their peoples, taking into account the principle of sustainable development.”137 There are also records of votes adopting sustainable development policies, strategies and objectives in many international institutions, including the UN General Assembly,138 the UNEP Governing Council,139 and the European

economic and social development, balance between development and nature and balance between the needs of domestic development and of opening up the economy to the outside world.). 135

Federated States of Micronesia, ‘National Assessment Report (June 2006)’ accessed 18 January 2008.

136

Basis for Relations between Finland and the Russian Federation (signed 20 January 1992, entered into force 11 July 1992) 1691 UNTS 255.

137

Consolidated Versions of the Treaty on European Union (signed 17 February 1992) OJ C 321E of 29 December 2006 accessed 18 January 2008.

138

Resio S. Moses, ‘Statement by the Secretary of External Affairs of the Federated States of Micronesia in the General Debate of the 48th Session of the General Assembly of the United Nations’ accessed 18 January 2008 (The Federated States of Micronesia pays tribute to the enlightened men and women who gave life to the UNCED process and focused the World’s attention on the necessity to begin replacing wasteful and polluting practices with sustainable development. (…)We intend that our country will become a model of effective partnership with other nations and this Body to demonstrate the application of new, clean technologies to accommodate sustainable development within a small, pristine environment.); Julian R. Hunte, ‘Statement on behalf of St. Lucia at the 57th Session of the General Assembly of the United Nations’ accessed 18 January 2008.

139

‘Latin America and the Caribbean Regional Statement to the Ninth Global Civil Society Forum and the Tenth Special Session of the Governing Council/Global Ministerial Environment Forum’ accessed 18 January 2008 ([I]t is essential to generate and strengthen alliances among the environmental and socioeconomic sectors in the framework of the National Strategies for Sustainable Development in order to implement climate change prevention, mitigation and adaptation policies and projects).

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Commission,140 even when such a vote implied the designation of new or additional resources. States have directed the World Bank Group,141 the Asian Development Bank,142 the African Development Bank,143 the Inter-American Develop-

140

EU – Canada Summit (Toledo, 8 May 2002), ‘Joint Summit Statement’ accessed 18 January 2008 (The EU and Canada will work together to make the World Summit on Sustainable Development in Johannesburg a success. We are committed to work with our respective domestic and international partners to ensure that globalisation promotes sustainable development for the benefit of all); EU-China Summit (Beijing, 5 September 2005), ‘Joint Statement’ accessed 18 January 2008 (This partnership will fully complement the UN Framework Convention on Climate Change and the Kyoto Protocol. It will strengthen cooperation and dialogue on climate change including clean energy, and will promote sustainable development. It will include cooperation on the development, deployment and transfer of low carbon technology, including advanced near-zero-emissions coal technology through carbon capture and storage).

141

World Bank, ‘Operational Policy 4.04 Natural Habitats’ accessed 18 January 2008 (The conservation of natural habitats, like other measures that protect and enhance the environment, is essential for long-term sustainable development. The Bank therefore supports the protection, maintenance, and rehabilitation of natural habitats and their functions in its economic and sector work, project financing, and policy dialogue. The Bank supports, and expects borrowers to apply, a precautionary approach to natural resource management to ensure opportunities for environmentally sustainable development.).

142

A sian Development Bank, ‘Environmental Policy’ accessed 18 January 2008 [24] (To reduce poverty through environmentally sustainable development, ADB’s Environment Policy contains five main elements: (i) promoting environment and natural resource management interventions to reduce poverty directly, (ii) assisting DMCs to mainstream environmental considerations in economic growth, (iii) helping maintain global and regional life support systems that underpin future development prospects, (iv) building partnerships to maximize the impact of ADB lending and nonlending activities, and (v) integrating environmental considerations across all ADB operations).

143

A frican Development Bank, ‘Group’s Policy on the Environment’ accessed 18 January 2008 (The complex relationship between environmental degradation, population, poverty and other development issues have provided enough evidence that sustainable development and conservation of the environment cannot be achieved through good environmental planning of development projects alone. Environmental issues will, therefore, be addressed by the Bank within a more open and inclusive approach, which relies as much on effective partnerships, networking, awarenessbuilding, institutional development and technical support as it does on the strict application of operational objectives).

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ment Bank144 and the European Bank for Reconstruction and Development,145 among others, to implement policies which ensure that their programmes will promote sustainable development. For instance, the World Bank’s Operation Manual established that Country Assistance Strategies must be drafted with sustainable development and poverty reduction as goals.146 Regional organizations have, also under direction from their Member States, created departments147 or sections148 that focus on sustainable development. In 1996 the Organization of American States hosted a special Summit of the Americas on Sustainable Development, where the Santa Cruz de la Sierra Declaration was adopted.149 It states “We affirm that the well-being of our people requires the achievement of three closely linked and interdependent objectives: economic growth with equity to reduce poverty, social development, and democratic governance”. The OAS General Assembly similarly recognized the importance of sustainable development in the Inter-American Democratic Charter,150

144

Inter-American Development Bank, ‘Environment and Safeguards Compliance Policy’ accessed 18 January 2008 (This Policy is grounded in the principles of sustainable development as set out in the Declaration of Rio 92, Agenda 21, and most recently reinforced in the World Summit on Sustainable Development in Johannesburg. Sustainability goals, in this context, depend on the alignment of social and economic development goals with long-term environmental sustainability. (…) This Policy encompasses social, cultural and economic aspects to the extent that these aspects are derived from geophysical and/or biotic changes associated with a particular operation. Also, this policy identifies environment as a dimension of development to be mainstreamed and internalized across all sectors.).

145

European Bank for Reconstruction and Development, ‘Environmental Policy’ accessed 18 January 2008 (In order to comply with its environmental mandate, policy objectives and general principles, the EBRD will pursue four strategic directions: (i) integrating environmental considerations into the project cycle; (ii) promoting environmentally oriented investments across all sectors; (iii) mainstreaming environmental considerations through the EBRD’s sectoral and country strategies and technical cooperation activities; and (iv) building partnerships to address regional and global environmental issues); see also Agreement Establishing the European Bank for Reconstruction and Development (signed 29 May 1990, entered into force 28 March 1991) 1646 UNTS 97, 29 ILM 1077, art 1.viii accessed 18 January 2008.

146 147

World Bank, ‘Bank Procedure 2.11: Country Assistance Strategies’.

Organization of American States, Department of Sustainable Development accessed 6 January 2008.

148

European Commission, Portal on Sustainable Development accessed 6 January 2008.

149

Special Summit of the Americas, Declaration of Santa Cruz de la Sierra (adopted 1996) accessed 6 January 2008.

150

‘Inter-American Democratic Charter’ OASGA (adopted 11 September 2001) OAS Doc AG/RES. 1 (XXVIII-E/01).

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and has adopted a resolution on Energy for Sustainable Development.151 After adopting its Strategy for Sustainable Development,152 the European Commission recognized that its “external dimension needed to be further developed”153 and undertook to develop a global partnership for sustainable development.154 A renewed Strategy for Sustainable Development which takes this dimension into account was adopted by the European Council on 2006.155 Even the G8, during the Summit of Evian, adopted an action plan for “Science and Technology for Sustainable Development.”156 A brief survey of State pleadings (and the decisions of judges) from international courts the Nuclear Tests cases,157 the Certain Phosphate Lands in Nauru case,158 the Gabcikovo-Nagymaros case,159 the Iron Rhine Arbitration,160 and the recent Pulp Mills on the River Uruguay case161 demonstrates that a broad array of States are willing to appeal to arguments related to certain elements of sustainable development in international tribunal processes. In the case of Certain Phosphate Lands in Nauru, for instance, the argument focused on the failure of the colonial powers to promote the economic development of Nauru according to the UN Charter and the Trusteeship Agreement.162 In the Gabcikovo-Nagymaros case, more directly, Slovakia argued that “there is if anything an even greater emphasis today on the need to allow States the freedom to develop their natural resources pursuant to their own policies, and in a way that is sustain-

151

‘Declaration of Panama: Energy for Sustainable Development’ OASGA (adopted 5 June 2007) OAS Doc AG/DEC. 52 (XXXVII-O/07).

152

Communication from the Commission A Sustainable Europe COM/2001/0264 for a Better World: A European Union Strategy for Sustainable Development (Commission’s proposal to the Gothenburg European Council), not published in the OJ.

153

Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions COM/2002/0082 Towards a Global Partnership for Sustainable Development, not published in the OJ.

154 155

Ibid.

European Council DOC 10917/06 Renewed EU Sustainable Development Strategy.

156

2003 G8 Summit, Science and Technology for Sustainable Development – A G8 Action Plan accessed 6 January 2008.

157

Nuclear Tests Case (New Zealand v. France) (Request for an Examination of Situation in Accordance with Paragraph 63 of Court’s Judgment of 20 December 1974: Order, Dissenting Opinion by Judge Weeramantry) General List No 97 [1995] ICJ 288.

158

Certain Phosphate Lands in Nauru (Nauru v. Australia) (Preliminary Objections: Judgment) General List No 80 [1992] ICJ 240, 32 ILM 1471.

159

Gabčíkovo-Nagymaros (n 17).

160 161

Iron Rhine (n 117).

P ulp Mills (n.120).

162

Certain Phosphate Lands in Nauru (Nauru v. Australia) (Memorial of the Republic of Nauru Volume 1) [390] accessed 18 January 2008.

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able.”163 In recent cases, the arguments of States have been more explicit, for instance Belgium argued in the aforementioned Iron Rhine Arbitration that “the reactivation of the Iron Rhine is of major international interest, in that it will contribute to sustainable development in each of its ecological, economic and social pillars.”164 In the same fashion Alan Boyle, as Counsel for Uruguay before the ICJ in the public sitting for provisional measures in the aforementioned Pulp Mills on the River Uruguay case, argued that: “This is not a dispute in which the Court has to choose between one party seeking to preserve an unspoiled environment and another party recklessly pursuing unsustainable development, without regard to the environment, or to the rights and interests of neighbouring States. It is a case about balancing the legitimate interests of both parties. It is a case in which Uruguay has sought -without much co-operation from its neighbor- to pursue sustainable economic development while doing everything possible to protect the environment of the river for the benefit of present and future generations of Uruguayans and Argentines alike.”165

There is also increasing State practice in national legislation on sustainable development that seeks to integrate environmental and social concerns into the development process. Nearly every State has, at the least, some form of environmental law in place which commits to sustainable development, and several States have now also set further laws in place, at national or sub-national levels, that are specifically aimed at integrating environment and development considerations for sustainable development. The following table simply provides an indication of the focus of these laws, and how they affect the practice of these States. Country

Law

Spain

Sustainable Development of Rural Areas Act

163

The basic purpose of this law is to regulate and establish measures for the promotion of sustainable development in rural areas, through the general administrative action of the State and the coordinated actions of other administrative entities. Its objects are simultaneously economic, social and environmental.

Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Memorial submitted by the Slovak Republic) 294 accessed 18 January 2008.

164

In the Arbitration Regarding the Iron Rhine (Ijzeren Rijn) Railway (Belgium v. Netherlands), (Memorial submitted by Belgium) accessed 18 January 2008.

165

Case Concerning Pulp Mills on the River Uruguay (Argentina V. Uruguay) (Verbatim Record of the Public sitting held on Thursday 8 June 2006, at 3 p.m., at the Peace Palace) 30-31 accessed 18 January 2008.

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Quebec (Canada)

Sustainable Development Act

The measures introduced by this Act are intended to bring about change within society with respect to non-viable development methods by further integrating the pursuit of sustainable development into the policies, programs and actions of the Administration, at all levels and in all areas of intervention.

South Africa

The National Environmental Management Act.

Sustainable development requires the integration of social, economic and environmental factors in the planning, implementation and evaluation of decisions to ensure that development serves present and future generations.

Australia

Mineral Resources (Sustainable Development) Act.

The purpose of this Act is to encourage an economically viable mining industry which makes the best use of mineral resources in a way that is compatible with the economic, social and environmental objectives of the State.

New Zealand

Local Government Act.

The purpose of this Act is to provide for democratic and effective local government that recognises the diversity of New Zealand communities; and, to that end, this Act— (…) (d) provides for local authorities to play a broad role in promoting the social, economic, environmental, and cultural well-being of their communities, taking a sustainable development approach.

The scope of this legislation is not always restricted to the respective countries, as it can take into account the possibility of transnational repercussions. States such as South Africa166and Spain167 have incorporated in their legislation the requirement to integrate social, economic and environmental factors in the planning of development projects abroad. In countries with federal systems such as Canada, provincial legislatures have adopted individual strategies for sustainable development.168 Several Latin American countries have even incorporated requirements concerning the sustainability of development initiatives into their Constitutions as a policy of State.169 Diverse States have created and adopted official national strategies for sustainable development,170 which stress the importance of environmental and social sustainability in economic activities both at

166 167

T he National Environmental Management Act 107 of 1998.

L ey Para el desarrollo sostenible del medio rural, Ley 45/2007, de 13 de diciembre, Preambulo.

168

Manitoba: Manitoba Statutes; The Sustainable Development Act; S.M. 1997, c. 61; Quebec: Sustainable Development Act, R.S.Q. c. D-8.1.1; Newfoundland and Labrador: Sustainable Development Act, S.N.L. 2007, c. S-34.

169

Constitución Política de la República de Colombia, art 80 accessed 6 January 2008; Constitución Política del Perú, art 67, 69 accessed 6 January 2008.

170

Swanson (2004).

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home171 and abroad.172 Documented National Strategies for Sustainable Development exist for States such as Brazil, Mexico, the Dominican Republic, the European Union, South Africa, China, Japan, South Korea, Australia, among nearly 90 others. These Strategies typically contain local activities in order to observe and promote sustainable development, and even some include international measures. In them, many States explicitly recognise sustainable development as both a goal, and a principle. Further, the international aid polices of most developed countries aim to promote the adoption of sustainable development patterns in developing countries.173 There is also a growing body of national jurisprudence in which Courts clearly indicate that sustainable development is legally relevant, referring to the need to reconcile or integrate environment and development objectives.174 In sum, there is ample, significant and voluminous evidence of State practice making commitments to sustainable development. While the evidence does not necessarily point to one specific and clear principle, in the sense that a prohibition of armed attack provides a clear ‘thou shalt not’ or a permission of hot pursuit provides a clear ‘thou canst’, it certainly demonstrates more than mere repetition of a term. Indeed, the evidence overwhelmingly indicates that States make commitments to sustainable development either as a goal, an approach or 171

Mexico’s National Development Plan 2007-2012 states that “one of the principal challenges that Mexico faces is to include environmental concerns as one of the elements of competitiveness and of social and economical development. (…) It is the moment to incorporate sustainable development as a transversal element of public policies” accessed 18 January 2008.

172

For instance, the UK “The Government therefore cannot make national policy in isolation. Yet international action touches on many difficult questions about development, trade, environment and global inequalities.” The HM Government, Securing the Future: Delivering UK Sustainable Development Strategy accessed 6 January 2008, 45.

173

International Development Act 2002 (UK); USAID 2007-2012 Strategic Plan Under the 4th Strategic Goal (Promoting Economic Growth and Prosperity) includes the priority of promoting sustainable use of natural resources: “We will continue to promote a holistic approach to environmental issues in international fora, integrating our interests in conserving the planet’s resources into our economic plans and activities.” FY 2007-2012 Department of State and USAID Strategic Plan < ttp://www.state.gov/documents/organization/86291.pdf> accessed 6 January 2008.

174

For example, the Indian cases address environmental pollution as an issue affecting the human right to life: Charan Lal Sahu v. Union of India AIR 1990 SC 1480; Koolwal v. Rajasthan AIR 1998, Raj.2,; see also, Leatch v. National Parks and Wildlife Service and Shoalhaven City Council, 81 LGERA 270 (1993) (NSW Land and Environment Court, Australia); Vellore Citizens Welfare Forum v. Union of India [1996] 5 SCC 647 (Supreme Court, India); Balankulama v. The Secretary, Ministry of Industrial Development, SAER, Vol 7(2) June 2000 (Supreme Court, Sri Lanka – Supreme Court of the Democratic Socialist Republic of Sri Lanka). See also Minors Oposa v. Secretary of the Department of Environment and Natural Resources (DENR), 33 I.L.M. 173 (1994) (Philippines), though the case addressed mainly questions of standing in national law on behalf of future generations.

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explicitly as a principle, and that they do so in order to ensure that environmental protection is taken into account in the socio-economic development process, integrating environmental, social and economic aspects of development. The answer to the question of opinio juris is, however, not quite so straightforward.



3.3.3 Opinio Juris on Whether States are Bound by a Principle of Sustainable Development

It is not necessarily easy to find evidence of opinio juris, as this it requires demonstrating the actual motives underlying a State’s words and actions. As noted by Sands, such evidence can be found in expressions of belief regarding acts of international organizations and other international meetings; statements made by representatives of states, and the conclusion of treaties.175 It can also be found in the same sources which provide evidence of State practice. The problem, here, is uncovering specific formal announcements which evince that States have committed to either realise, or even promote sustainable development, believing their decision to have been required by a binding international principle or obligation, rather than some other form of commitment (for instance, a political commitment to a common global purpose). One statement on State beliefs is found in the UNGA Resolution which accepted the Brundtland Report, in which UN Member States solemnly note the “accelerating deterioration of the human environment and natural resources and the consequences of that deterioration for economic and social development,” and then declare: “Believing that sustainable development, which implies meeting the needs of the present without compromising the ability of future generations to meet their own needs, should become a central guiding principle of the United Nations, Governments and private institutions, organizations and enterprises…”176

This Resolution, however, uses hortatory language – ‘should become’ rather ‘can be recognised as.’ This implies that the members of UN General Assembly, in 1987 at least, did not yet recognise sustainable development as a guiding principle. Further, the UN GA does not actually declare that sustainable development should become a binding principle of customary international law. Rather, it uses slightly different terms – a “central guiding principle” and casts its net wider than States to include private institutions, organizations and enterprises. This suggests that the UN GA was not necessarily seeking to recognize sustainable development as binding law in the opinio juris sense. 175

Sands (2003) 146-147.

176

‘Report of the World Commission on Environment and Development’ UNGA Res 42/187 (11 December 1987) UN Doc A/Res/42/187.

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However, it could be argued that a binding commitment to sustainable development has emerged since the days in 1987 when the UN GA stated that it should become a central guiding principle of Governments and others. To do this successfully, it is necessary to show that while sustainable development was not yet accepted in 1987, it has since (quite rapidly) evolved into a customary principle of international law. Certain evidence can be found in the pleadings and decisions of international tribunals since 1987. For instance, in the 1997 Gabcikovo-Nagymaros (Hungary v. Slovakia) case, Hungary states in its pleadings that: “Hungary and Slovakia agree that the principle of sustainable development, as formulated in the Brundtland Report, the Rio Declaration and Agenda 21 is applicable to this dispute…”177 There are indications from similar statements of State representatives in international treaty negotiations related to climate change, biological diversity, desertification, food security and other concerns, and in the United Nations Commission on Sustainable Development, that even if States do not consider themselves bound by a legal obligation to develop sustainably in every instance, they do feel bound by a more general obligation to promote sustainable development, or at least not to interfere with the rights of other States to pursue sustainable development themselves. Furthermore, the existence of the extensive body of national legislation and international policy on sustainable development mentioned above, much of which cites international obligations in its Preamble or other text, also supports the suggestion that many States might consider themselves to be committed to sustainable development in international law. Indeed, if it was formulated as a binding legal obligation which recognises a ‘right to promote sustainable development’, it is possible to argue that several treaties actually do recognise sustainable development as a principle of international law among the Parties, one that could become universally binding as custom, eventually. As noted above, one of the most significant is the United Nations Framework Convention on Climate Change (UNFCCC). This treaty recognizes that the climate system is a shared resource whose stability can be affected by industrial and other emissions of carbon dioxide and other greenhouse gases, and sets an overall framework for intergovernmental efforts to tackle the challenge posed by climate change. It entered into force on 21 March 1994, and enjoys near universal membership, with 191 countries having ratified. Under the UN FCCC, governments gather and share information on greenhouse gas emissions, national policies and best practices; launch national strategies for addressing greenhouse gas emissions and adapting to expected impacts, including the provision of financial and technological support to developing countries; and cooperate in preparing for adaptation to the impacts of climate change. As mentioned briefly above, in Article 3 of the UN FCCC, entitled Principles, the following statement is found: 177

Gabčíkovo-Nagymaros (n 17) [90].

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“4. The Parties have a right to, and should, promote sustainable development. Policies and measures to protect the climate system against human-induced change should be appropriate for the specific conditions of each Party and should be integrated with national development programmes, taking into account that economic development is essential for adopting measures to address climate change.”

In the UN FCCC, therefore, the promotion of sustainable development is framed as one of the ‘Principles’ of the treaty, where it is described as a ‘right.’ It is also, however, framed as a hortatory (“should” rather than “shall”) commitment to ‘promote’. Further, once recognised, the Parties immediately sought to further define this ‘principle’ by noting in caveat that climate protection measures need to be appropriate for different Parties and integrated into development programmes, and by the recognition that economic development is still “essential.” A second relevant treaty, as noted above, is the 1994 United Nations Convention to Combat Desertification and Drought, especially in Africa (UN CCD). In 1977, the United Nations Conference on Desertification (UNCOD) adopted a Plan of Action to Combat Desertification (PACD). Unfortunately, the problem of land degradation in arid, semi-arid and dry sub-humid areas continued to intensify. As a result, the question of how to address desertification was still a major concern for the 1992 UNCED. As noted by the UN CCD Secretariat, the UNCED supported a new, integrated approach to the problem, emphasizing action to promote sustainable development at the community level. It also called on the UN GA to prepare, by June 1994, a Convention to Combat Desertification, particularly in Africa. In December 1992, the General Assembly agreed and adopted resolution 47/188. The Convention was adopted in Paris on 17 June 1994 and entered into force on 26 December 1996, 90 days after the fiftieth ratification was received. Over 179 countries are Parties to the UN CCD. Sustainable use is formulated as a Principle in Article 3 of the UN CCD which states: “Principles: c) the Parties should develop, in a spirit of partnership, cooperation among all levels of government, communities, non-governmental organizations and landholders to establish a better understanding of the nature and value of land and scarce water resources in affected areas and to work towards their sustainable use…” (emphasis added)

Here, it is a principle which recognises that Parties will cooperate to work towards the sustainable use of land and water resources. As will be seen below, there are other references to sustainable development in the UN FCCC and in the UN CCD which do not appear to be ‘principles’ of these treaties.

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A further caveat is necessary. Returning to the UN FCCC, it should be noted that Principle 4 of the UN FCCC is provided as a distinct norm from Principle 1, which states in part “The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity...” It is also distinct from Principle 5, which states that “…Parties should cooperate to promote a supportive and open international economic system that would lead to sustainable economic growth and development in all Parties, particularly developing country Parties, thus enabling them better to address the problems of climate change...” As such, it would appear that while UN FCCC Principle 4 recognizes a right and (hortatory) duty of States to promote sustainable development, this does not imply either intergenerational equity or a ‘new kind of economic growth,’ as both of these are recognised as separate principles. Rather, the right to promote sustainable development appears to refer more directly to the work of the Parties to integrate environmental protection with development processes. In sum, in considering evidence to support the existence of a principle of customary international law on sustainable development, there is clearly a great deal of general state practice committing to sustainable development, and there appears to be a certain weight of opinio juris which supports the proposal that states do this because they feel bound by some form of international commitment to sustainable development. If it were a principle of international law (recognized in treaty and emerging as customary), it seems most likely that the norm would be mainly related to the integration of environment and socio-economic development: that States shall take environmental protection into account in the development process and vice versa (as stated in the Iron Rhine Railway arbitration). A slightly more optimistic view would be that States are, building on this commitment to integration of environment, social and economic priorities in the development process, also beginning to recognize a right of States to promote sustainable development, implying a related duty not to interfere unduly with each others’ efforts to do so (as implied in the Uruguay River Pulp Mills case). However, there is a lingering lack of clarity as to whether States undertake such a commitment due to a sense of legal obligation, or simply due to a common commitment to a noble political goal. It is not clear, essentially, that a principle of sustainable development has emerged in international customary law yet. Whether or not sustainable development could be described as customary rule of international law, however, there are also other ways that the concept has legal relevance today.

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3.4 Sustainable Development as an Object and Purpose of International Law

A search for one agreed customary norm of sustainable development might actually be a search in the wrong direction. One further possibility is that sustainable development could be characterized as an objective of States, and even an internationally recognized policy objective of the world community as a whole. As a global objective, similar to other objectives such as ‘world peace,’ ‘respect for human rights’ and ‘conservation of nature,’ sustainable development has been recognised as part of the object and purpose of many international treaties. And as will be discussed further below, this implies that States are undertaking international legal obligations to realise sustainable development. It does not preclude the existence of further (more specific or normative) international principles of law related to sustainable development.



3.4.1 The Meaning and Effect of an ‘Object and Purpose’ in International Treaty Law

Both principles and policy objectives have a dimension that rules do not – the dimension of weight and importance.178 As noted by Dworkin, policy objectives set out goals to be reached, generally improvements in some economic, political or social situation deemed desirable by the community.179 Arguments of policy justify a political decision by showing that the decision advances or protects a collective goal of the community as a whole.180 When such norms intersect, those resolving the conflict must take the relative weight of each into account. Policies may be persuasive but are not legally binding as such on judges in domestic law, though as Dworkin argues, principles may very well be.181 In international law, particular relevance is given to policy objectives when agreed among States. Of course, as argued by Martti Koskenniemi, to “…say that international law is for ‘peace’, ‘security’ and ‘justice’ is to say that it is for peace, security and justice as agreed and understood between the members of the 178

D workin (1977) 22-31.

179

Ibid. See also Koskenniemi (2006) 64-66, where he argues “…we do not honour the law because of the sacred aura of its text or its origin but because it enables us to reach valuable human purposes… In domestic society, abstract law-obedience can be defended in view of the routine nature of the cases that arise, and the dangers attached to entitling citizens to think for themselves. Such arguments are weak in the international realm where situations of law-application are few, and disadvantages of disobedience often significant.” However, as he argues later, “there never are simple, well-identified objectives behind formal rules. Rules are legislative compromises, open-ended and bound in clusters expressing conflicting considerations.”

180 181

D workin (1977) 82-130.

Boyle (2006) 149.

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system.”182 However, a great deal of international law is found in international treaties, which lay out the rules that govern a relationship between States that are Parties to the accord. The customary rules governing treaties are laid out in the Vienna Convention on the Law of Treaties, 183 which “covers the most important areas and is the starting point for any description of the modern law and practice of treaties.”184 The provisions on interpretation of treaties contained in Articles 31 and 32 of the Vienna Convention reflect pre-existing customary international law, as referred to in Article 4 of the Convention, and thus may (unless there are particular indications to the contrary in the treaty itself) be applied even to treaties concluded before the entry into force of the Vienna Convention on the Law of Treaties in 1980 and also to non-Parties.185 There is no case after the adoption of the Vienna Convention in 1969 in which the ICJ or any other leading tribunal has failed to decide so. Article 31, as the general rule of interpretation, provides at 1 that “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” And at 2, the Convention further states that: “The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes…”186 182 183

Evans (2006).

Vienna Convention on the Law of Treaties (singed 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, 8 ILM 679.

184 185

Aust (2000) 6.

T he International Court of Justice has applied customary rules of interpretation, now reflected in Articles 31 and 32 of the Vienna Convention, to a treaty concluded in 1955: Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya v.Chad) (Judgment) General List No 83 [1994] ICJ 6, (1994) 33 ILM 571 [41]; and to a treaty concluded in 1890, bearing on rights of States that even on the day of the Judgment were still not parties to the Vienna Convention: Kasikili/Sedudu Island (Botswana/Namibia) (Judgement) General List No 99 [1999] ICJ 1045, (2000) 39 ILM 310 [18]; In the Sovereignty over Pulau Ligitan and Pulau Sipadan case, the Court noted that Indonesia was not a party to the Vienna Convention, but nevertheless applied the rules as formulated in Articles 31 and 32 of that Convention to a treaty concluded in 1891, Indonesia did not dispute that the rules codified in these articles were applicable: Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia) (Judgment) General List No 102 [2002] ICJ 625 [37]-[38].

186

T he Article goes on to note the relevance of “(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. Article 32, which refers to Supplementary means of interpretation, permits recourse to be had to supplementary means of interpretation, including the preparatory

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As such, although the clauses contained within Article 31 are not hierarchical, the starting point for interpretation is the ordinary meaning to be given to the terms, taking them in context, and in the light of the object and purpose of the treaty. While a doctrine of ‘restrictive interpretation’ suggests that treaties are to be interpreted in favour of State sovereignty in case of doubt, this view is not in fact mentioned in the provisions of the Vienna Convention,187 and its contemporary relevance can be questioned.188 In essence, the terms of the treaty, in context and in accordance with its object and purpose, are taken together to guide a lawyer in understanding the intentions of the parties, and are the prevailing elements for interpretation. These elements are not just legally relevant, but actually paramount – inter pares to an international agreement, in any case. Sustainable development may be an object and purpose for more than thirty treaties which explicitly commit to achieve it (including many trade and investment agreements) since the 1992 Rio Earth Summit, and as such, is also relevant in regimes to implement further treaties that are related to sustainable development, such as the several hundred agreements highlighted by States as ‘delivery mechanisms’ for the priorities outlined in the Johannesburg Plan of Implementation of the World Summit on Sustainable Development. As object and purpose of these treaties alone, the concept could be extremely important and influential in international law. It could affect interpretation of treaty obligations in a dispute related to the environment or development issues, and would also guide the implementation of the agreements and even the further evolution of the treaty regimes themselves. This is important because few international treaties today, particularly in the field of sustainable development, are simply contracts among States. As John Ruggie and Stephen Krasner have suggested, to understand the norms found in international treaties and how they are implemented, it is important to analyse the implicit understandings between a broad range of actors, not necessarily only States.189 A ‘regime’ is an institution that might coalesce or be structured around certain legal rules and certain formal organisations, but goes well beyond them, and develops iteratively. Such regimes, as posited by John Vogler, can be defined as “sets of implicit or explicit principles, norms, rules and decision-making procedures around which actors’ expectations converge in a given area of international relations.”190 These are different elements of a regime, where principles “are beliefs of fact causation and rectitude. Norms are work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable. 187

See Jennings & Watts (1992) 1279, as cited in Iron Rhine (n 117) [53].

188

Bernhardt (1999) 42, as cited in Iron Rhine (n 117) [53].

189

Ruggie (1975). See also Ruggie (2004) 499-531.

190

Vogler (2000) 20-43.

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standards of behaviour defined in terms of rights and obligations. Rules are specific prescriptions or proscriptions for action. Decision-making procedures are prevailing practices for making and implementing collective choice.”191 All are necessary parts of an international treaty regime which exists to achieve the common object and purpose of States and other international actors. Regimes, therefore, in international relations theory, can be described as governing specific issue areas in an interactive way (human rights regime, climate change regime, trade regime). This distinguishes them from broader ‘international orders’ which imply an authority superintending over a wide range of institutions and issues.192 As such, regimes are more “specialised arrangements that pertain to well defined activities, resources or geographical areas and often involve only some subset of the members of international society.”193 As Vogler observes, the boundaries of a regime are thus determined partly by perceptions of the extent and linkage between issues. The regime is useful as an analytical construct, as it calls attention to the way that principles, rules and decision-making procedures develop, interact and evolve in one ‘sub-system’, focusing on the converging expectations of a group of international actors. As Stephen Toope and Jutta Brunnee suggest, regime analysis can serve the study of international law, drawing on the ‘interactional’ behaviours of legal subjects and rules originally observed by Lon L Fuller.194 International regimes, as they note, can coalesce around international treaty commitments, which evolve and ‘deepen’ over time through interactions between states and non-state actors, shaping and being shaped by the norms and rules, knowledge and networks generated by the regime. 195 From this perspective, both ‘hard’ and ‘soft’ law between Parties to a treaty (or series of treaties) also evolves with the regime, and involves more than States in its implementation.196 A regime may start with a legally binding agreement with broad participation but shallow substantive commitments, then deepen in substantive content and engagement of more and better informed actors, leading to greater compliance over time. As such, the emergence, evolution and effects of normative systems can coalesce around a particular object and purpose in international law, reinforced by ‘epistemic communities’ which share scientific information and data.197 In certain circumstances, it may be undesirable to negotiate seemingly strong international treaties without first going through a careful, incremental process of regime-building. Unless advocates have first “imagined and nurtured a normative community,” even formal legal commit191

See especially Ruggie (1983); see also Haggard and Simmons (1987); Stokke (1997) 27-64.

192 193

Vogler (2000) 20-43.

Young (1989) as cited in Vogler (2000) 23.

194 195

See Toope and Brunnée (2000)19-74; see also Brunnée and Toope (2002) 105-159.

See Toope and Brunnée (2000) 19-74; see also Brunnée & Toope (2002) 1-23.

196 197

Shelton (2006) 183. See also Boyle (2006) 151.

Ibid. see also Brunnée (2002) 1-52.

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ments are unlikely to be meaningful; states may simply assent with no intention of complying – or no capacity to comply.198 As Brunnee and Toope suggest, once a contextual agreement, such as a framework convention or commitment to binding dispute resolution, initiates the development of self-reinforcing norms and institutions, regimes can then evolve in the direction of deeper substantive legal commitments. This element of ‘regime-building’ is important for an understanding of sustainable development in international law. In many treaties on sustainable development, an initial treaty commitment often also includes commitments to respect a certain dispute settlement procedure, as well as to continue negotiations, and commit to trade policy reviews which evaluate domestic laws which seek to implement development – and sustainable development – objectives. In both the 1992 UN CBD and the 1992 UN FCCC, for instance, States essentially establish framework agreements which commit to certain common objectives, and a process by which further more detailed and specific protocols are negotiated. The same has occurred in the field of human rights, where the Inter-American Human Rights Convention set up a commission and a court to interpret and develop human rights law, and negotiators also continued working on a new Protocol of San Salvador on Economic, Social and Cultural Rights. A steady building process, focused on the object and purpose of the treaty, has yielded increasingly complex and sophisticated regimes of nearly universal application. Further, considerable capacity building is often needed to assist developing country members to come up to speed with the instruments and techniques, and sometimes even simply to set laws in place that can be used to implement new treaties. As such, it seems useful to first undertake an incremental process of regime-building, as in the absence of such cooperative efforts, treaties might be ratified but compliance will not occur. It is often the receipt of new, cooperatively achieved scientific data about the effects (or lack of effects) of a development activity, or about the effectiveness (or inappropriateness) of certain social or environmental standards, that provokes tougher standards and successful technology transfers. Returning to the question above, therefore, two points can be made. First, in order to carefully consider the question of whether sustainable development can be described as an object and purpose of international treaties, it is necessary to analyse the agreed text, institutions and instruments, decisions and broader implications of the actual treaty regimes that seek to achieve sustainable development. Second, in understanding the legal status and relevance of sustainable development as an ‘object and purpose’ of international law, it is useful to adopt, as an analytical framework, a view which takes legal norms into account as they are embedded in – and affect the evolution of – legal regimes. As such, a consideration of the meaning and effect of a concept that is adopted as an objective and purpose of international law may begin with a consideration of the text of 198

Ibid.

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treaties, but would ideally be extended into a more detailed analysis of how the goal has been reflected in the travaux preparatoires (including, where applicable, sustainability impact assessments or environmental reviews that have been conducted and tabled among the Parties), in how the treaty has been interpreted in any disputes, and especially in the subsequent practice (implementation) among the Parties, including the evolution of the legal regime and its rules.



3.4.2 Sustainable Development as an Objective or ‘Purpose’ of International Law

The ‘soft law’ from the 1972 Stockholm Declaration, the UN GA Resolution on the Brundtland Report, the 1992 Rio Declaration and Agenda 21, and the 2002 Johannesburg Declaration and Johannesburg Plan of Implementation does provide convincing evidence to justify finding sustainable development to be the object and purpose of international treaty law. Turning to UN GA Resolutions, there is convincing evidence in support of the proposition that States perceived sustainable development as the subject matter of international law. This view is found, for instance, in Chapter 39 of Agenda 21, entitled International Legal Mechanisms and Instruments, at para 39.1, which states that… “the following vital aspects of the universal, multilateral and bilateral treatymaking process should be taken into account: (a) The further development of international law on sustainable development, giving special attention to the delicate balance between environmental and developmental concerns; (b) The need to clarify and strengthen the relationship between existing international instruments or agreements in the field of environment and relevant social and economic agreements or instruments, taking into account the special needs of developing countries; (c) At the global level, the essential importance of the participation in and the contribution of all countries, including the developing countries, to treaty making in the field of international law on sustainable development...; (e) Future projects for the progressive development and codification of international law on sustainable development should take into account the ongoing work of the International Law Commission; (f) Any negotiations for the progressive development and codification of international law concerning sustainable development should, in general, be conducted on a universal basis, taking into account special circumstances in the various regions.”

Agenda 21 continues, at 39.10, stating that “… in the area of avoidance and settlement of disputes, States should further study and consider… mechanisms and

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procedures for the exchange of data and information, notification and consultation regarding situations that might lead to disputes with other States in the field of sustainable development and for effective peaceful means of dispute settlement in accordance with the Charter of the United Nations, including, where appropriate, recourse to the International Court of Justice, and their inclusion in treaties relating to sustainable development.” By referring to international law in this context, as ‘international law on sustainable development’, as ‘international law concerning sustainable development’, as ‘international law in the field of sustainable development’ and as ‘treaties relating to sustainable development’, States appear to set sustainable development as a goal or subject matter of international law, rather than as a principle of international law in itself. Further evidence can be found in the decisions taken in the 1997 UNGASS Programme of Further Implementation of Agenda 21 which were adopted in a UN GA Resolution. In particular at 109 States agreed that: “Taking into account the provisions of chapter 39, particularly paragraph 39.1, of Agenda 21, it is necessary to continue the progressive development and, as and when appropriate, codification of international law related to sustainable development. Relevant bodies in which such tasks are being undertaken should cooperate and coordinate in this regard.”

The UNGASS continues at 110 by referring specifically to implementation of environmental law as a different field entirely.199 In the 2002 Johannesburg World Summit on Sustainable Development, this characterisation of ‘international law in the field of sustainable development’ was not overturned, nor significantly modified. Rather, as noted above, the focus was on implementation. States agreed, in the Johannesburg Plan of Implementation at 148 (e) to mandate the UN CSD to “[t]ake into account significant legal developments in the field of sustainable development, with due regard to the role of relevant intergovernmental bodies in promoting the implementation of Agenda 21 relating to international legal instruments and mechanisms.” A survey of the way that sustainable development is characterized in the grand majority of treaties which make specific reference to the concept further supports a characterization of sustainable development as ‘purpose’ whether or not it is a ‘principle.’

199

See Further Implementation of Agenda 21 (n 59).

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3.4.2.1 Sustainable Development in the UN FCCC and the Kyoto Protocol200

As noted above, the UN Framework Convention on Climate Change (UN FCCC) sets the overall framework for intergovernmental efforts to tackle the challenge posed by climate change. In spite of the Principles discussed above, an operational reference to sustainable development is also found in Article 2, which states that: “The ultimate objective of this Convention and any related legal instruments… is to achieve… stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time-frame sufficient… to enable economic development to proceed in a sustainable manner.”

As such, while it could be argued that the ‘right to promote sustainable development’ is recognized as Principle by States in the context of the UN FCCC, it also seems that stabilization of greenhouse gas reduction levels ‘should’ be achieved within a time-frame sufficient to ‘enable economic development to proceed in a sustainable manner,’ as part of States’ objectives for their cooperation under the treaty. The UN FCCC Preamble also affirms that “responses to climate change should be coordinated with social and economic development in an integrated manner with a view to avoiding adverse impacts on the latter, taking into full account the legitimate priority needs of developing countries for the achievement of sustained economic growth and the eradication of poverty”, recognizes that “all countries, especially developing countries, need access to resources required to achieve sustainable social and economic development…” and states that Parties are “determined to protect the climate system for present and future generations.” At COP 1 (Berlin, March/April 1995), in the Berlin Mandate, Parties launched intense negotiations which resulted in the Kyoto Protocol on 11 December 1997. The 1997 Kyoto Protocol shares UN FCCC objectives, principles and institutions, but commits Annex I Parties to individual, legally-binding targets to limit or reduce their greenhouse gas emissions. 175 State Parties to the UN FCCC have ratified the Kyoto Protocol to date. In contrast to the UNFCCC, the Kyoto Protocol mentions sustainable development as an objective in an extremely clear way. Indeed, it provides quite a solid definition of the types of

200

Descriptions based on agreed text: United Nations Framework Convention on Climate Change (adopted 9 May 1992, entry into force 21 March 1994) 1771 UNTS 107, (1992) 31 ILM 849; Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 11 December 1997, entry into force 16 February 2005) (1998) 37 ILM 22.

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measures that States can take ‘in order to promote sustainable development’ in the area of climate change. It states, at Article 2, that: “Each Party included in Annex I, in achieving its quantified emission limitation and reduction commitments under Article 3, in order to promote sustainable development, shall: (a) Implement and/or further elaborate policies and measures in accordance with its national circumstances, such as: (i) Enhancement of energy efficiency…(ii) … promotion of sustainable forest management practices, afforestation and reforestation; (iii) Promotion of sustainable forms of agriculture in light of climate change considerations; (iv) Research on, and promotion, development and increased use of, new and renewable forms of energy…” (emphasis added)

In the context of the UN FCCC, taking regime theory into account, it might be suggested that while an uneasy agreement existed to permit recognition of the right to promote sustainable development as a Principle in the UN FCCC negotiations of 1991-1992, by the 1997 negotiations of the Kyoto Protocol, consensus had evolved sufficiently among the Parties to recognize sustainable development as an ‘object and purpose’ of the treaty.



3.4.2.2 Sustainable Development in the UN Desertification Convention

As noted above, the international community has long recognized that desertification is a major economic, social and environmental problem of concern to many countries in all regions of the world. The 1994 UN CCD entered into force on 26 December 1996, and over 179 countries are Parties. In the UNCCD, States make over forty references to ‘sustainable’ development, use, management, exploitation, production and practices and/or unsustainable development and exploitation practices. While the sustainable use of land and water resources is, perhaps, set as a Principle in Article 3, States also clearly incorporated sustainable development as an ‘Objective’ of the UN CCD. In the Prologue, States note that they are: “Conscious that sustainable economic growth, social development and poverty eradication are priorities of affected developing countries, particularly in Africa, and are essential to meeting sustainability objectives…” and “Mindful that desertification and drought affect sustainable development through their interrelationships with important social problems such as poverty, poor health and nutrition, lack of food security, and those arising from migration, displacement of persons and demographic dynamics,… and “Realizing that, despite efforts in the past, progress in combating desertification and mitigating the effects of drought has not met expectations and that a new and more effective approach is needed at all levels within the framework of sustainable development…” In Article 2, titled “Objective”, States agree that the:

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“objective of this Convention is to combat desertification and mitigate the effects of drought in countries experiencing serious drought and/or desertification, particularly in Africa, through effective action at all levels, supported by international cooperation and partnership arrangements, in the framework of an integrated approach which is consistent with Agenda 21, with a view to contributing to the achievement of sustainable development in affected areas.”

They also agreed at 2 that “Achieving this objective will involve long-term integrated strategies that focus simultaneously, in affected areas, on improved productivity of land, and the rehabilitation, conservation and sustainable management of land and water resources, leading to improved living conditions, in particular at the community level.” As such, in the treaty States speak both to their intention that an integrated approach will ‘contribute to the achievement of sustainable development’ in particular areas, and that the adoption of integrated strategies will focus on ‘sustainable management of land and water resources’ leading to ‘improved living conditions’. This resonates well with both the concepts discussed above, in terms of integration of environmental, social and economic priorities in the development process, and in terms of the focus on human well-being in accordance with the writings of Amartya Sen and others. In the UNCCD there is some effort by States to specify how the objective will be realized. For instance in Part II General Provisions at Article 4.2, States agree that “In pursuing the objective of this Convention, the Parties shall:… (b) give due attention… to the situation of affected developing country Parties with regard to international trade, marketing arrangements and debt with a view to establishing an enabling international economic environment conducive to the promotion of sustainable development;…” Further, at Article 5 “Obligations of affected country Parties”, States agreed that: “In addition to their obligations pursuant to article 4, affected country Parties undertake to:…(b) establish strategies and priorities, within the framework of sustainable development plans and/or policies, to combat desertification and mitigate the effects of drought;…”

And at Article 18.1 on transfer, acquisition, adaptation and development of technology, the Parties undertake “to promote, finance and/or facilitate the financing of the transfer, acquisition, adaptation and development of environmentally sound, economically viable and socially acceptable technologies relevant to combating desertification and/or mitigating the effects of drought, with a view to contributing to the achievement of sustainable development in affected areas...” Interestingly, the different regional annexes refer to sustainable development in slightly different ways. For instance, in the African Annex at Article

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6.1, States lay out a strategic planning framework for sustainable development, establishing that: “National action programmes shall be a central and integral part of a broader process of formulating national policies for the sustainable development of affected African country Parties.” In the Asian Annex at Article 2 States note that in “carrying out their obligations under the Convention, the Parties shall, as appropriate, take into consideration the following particular conditions which apply in varying degrees to the affected country Parties of the region:… (f) their need for international cooperation to pursue sustainable development objectives relating to combating desertification and mitigating the effects of drought.” In the Latin America and Caribbean Annex at Article 2 States highlight that: “(b) the frequent use of unsustainable development practices in affected areas as a result of complex interactions among physical, biological, political, social, cultural and economic factors, including international economic factors such as external indebtedness, deteriorating terms of trade and trade practices which affect markets for agricultural, fishery and forestry products; and (c) a sharp drop in the productivity of ecosystems being the main consequence of desertification and drought, taking the form of a decline in agricultural, livestock and forestry yields and a loss of biological diversity; from the social point of view, the results are impoverishment, migration, internal population movements, and the deterioration of the quality of life; the region will therefore have to adopt an integrated approach to problems of desertification and drought by promoting sustainable development models that are in keeping with the environmental, economic and social situation in each country.”201 (emphasis added)



3.4.2.3 Sustainable Development in the UN CBD and the Biosafety Protocol202

As noted above, 190 countries have ratified the 1992 United Nations Convention on Biological Diversity (UN CBD), which recognizes that the conservation of biological diversity is ‘a common concern of humankind’ and is an integral part of the development process, and covers all ecosystems, species, and genetic resources. It links traditional conservation efforts to the economic goal of using biological resources sustainably. It establishes principles for the fair and equitable sharing of the benefits arising from the use of genetic resources, notably those destined for commercial use. It also covers the rapidly expanding field of biotechnology, addressing technology development and trans201

Convention to Combat Desertification (n 37).

202

Descriptions based on agreed text: Convention on Biological Diversity (signed 5 June 1992, entry into force 29 December 1993) 1760 UNTS 14, (1992) 31 ILM 1004; Cartagena Protocol on Biosafety to the Convention on Biological Diversity (adopted 29 January 2000, entry into force 11 September 2003) (2000) 39 ILM 1027.

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fer, benefit-sharing and biosafety. The UN CBD regime is built on measures and incentives for the conservation and sustainable use of biological diversity; regulated access to genetic resources; access to and transfer of technology, including biotechnology; technical and scientific cooperation; impact assessment; education and public awareness; provision of financial resources; and national reporting on efforts to implement treaty commitments. In Article 1, which is titled “Objectives,” States agree that the: “objectives of this Convention, to be pursued in accordance with its relevant provisions, are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding.” (emphasis added)

According to UN CBD materials, the treaty seeks to remind “decision-makers that natural resources are not infinite and sets out a new philosophy for the 21st century, that of sustainable use.” In the UN CBD, States recognize “that ecosystems, species and genes must be used for the benefit of humans. However, this should be done in a way and at a rate that does not lead to the long-term decline of biological diversity.” In the UN CBD, in Article 2, on the Use of Terms, States also agreed on the following definition for sustainable use of biological diversity: ““Sustainable use” means the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations.”

In Article 6 on general measures for conservation and sustainable use, States provide further definition for what they meant by ‘sustainable use’, stating that that each Party shall: “in accordance with its particular conditions and capabilities: (a) Develop national strategies, plans or programmes for the conservation and sustainable use of biological diversity or adapt for this purpose existing strategies, plans or programmes which shall reflect, inter alia, the measures set out in this Convention relevant to the Contracting Party concerned; and (b) Integrate, as far as possible and as appropriate, the conservation and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes and policies.”

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Furthermore, Article 8 states that each Party shall as far as possible and as appropriate: “(c) Regulate or manage biological resources important for the conservation of biological diversity whether within or outside protected areas, with a view to ensuring their conservation and sustainable use;… (e) Promote environmentally sound and sustainable development in areas adjacent to protected areas with a view to furthering protection of these areas;… (i) Endeavour to provide the conditions needed for compatibility between present uses and the conservation of biological diversity and the sustainable use of its components; (j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits… ”

Finally, in the Preamble to the UN CBD, States also noted that “ultimately, the conservation and sustainable use of biological diversity will strengthen friendly relations among States and contribute to peace for humankind;” that they desire “to enhance and complement existing international arrangements for the conservation of biological diversity and sustainable use of its components,” and that they are determined “to conserve and sustainably use biological diversity for the benefit of present and future generations.” As such, in the UN CBD, States appear not only to clearly adopt sustainable use of biological diversity as a treaty objective, but also define fairly precisely what is meant by sustainable use, and what types of measures and activities are needed to ensure that use is, indeed, sustainable in the context of biological resources. On 29 January 2000, the Conference of the Parties (COP) of the UN CBD adopted a supplementary Agreement, the 2000 Cartagena Protocol on Biosafety. This Protocol builds on Article 8 (g) of the UNCBD, in which States agreed (as appropriate) to: “Establish or maintain means to regulate, manage or control the risks associated with the use and release of living modified organisms resulting from biotechnology which are likely to have adverse environmental impacts that could affect the conservation and sustainable use of biological diversity, taking also into account the risks to human health;…” In the Protocol, States seek to protect biological diversity from the potential risks posed by living modified organisms resulting from modern biotechnology. They establish an advance informed agreement (AIA) procedure for ensuring that countries are provided with the information necessary to make informed decisions before agreeing to the import of such organisms into their territory. They also establish a Biosafety

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Clearing-House to facilitate the exchange of information on living modified organisms and to assist countries in the implementation of the Protocol. There are twenty references to the term ‘sustainable’ in the 2000 Cartagena Protocol on Biosafety. In Article 1, clearly titled Objective, Parties agree that: “In accordance with the precautionary approach contained in Principle 15 of the Rio Declaration on Environment and Development, the objective of this Protocol is to contribute to ensuring an adequate level of protection in the field of the safe transfer, handling and use of living modified organisms resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health, and specifically focusing on transboundary movements.” (emphasis added)

Worded this way, as “the conservation and sustainable use of biological diversity”, the term appears often in the Protocol. In Article 26, on Socio-Economic Consideration, it appears in the context of awarding special consideration to “the value of biological diversity to indigenous and local communities.” In this regard, at 26.2, Parties agreed that “The Parties are encouraged to cooperate on research and information exchange on any socio economic impacts of living modified organisms, especially on indigenous and local communities.” As such, the Cartagena Protocol clearly consider ‘sustainable use’ to be a second objective to conservation, and furthermore, considers the object relevant to social and economic (not just environmental) priorities such as the needs of indigenous and local communities. This highlights the point raised earlier, that there are important social and economic dimensions to sustainable development. Sustainable development, as an objective of international law, cannot simply be conflated with environmental protection in developing countries.



3.4.2.4 Sustainable Development in the FAO Seed Treaty203

After seven years of negotiations, the FAO Conference (through Resolution 3/2001) adopted the International Treaty on Plant Genetic Resources for Food and Agriculture, in November 2001. The Seed Treaty covers all plant genetic resources relevant for food and agriculture, and is vital in ensuring the continued availability of the plant genetic resources that countries will need to feed their people. In the Treaty, States seek to conserve for future generations the genetic diversity that is essential for food and agriculture. They defined “plant genetic resources for food and agriculture” as “any genetic material of plant origin of actual or potential value for food and agriculture”. The objectives are the conservation and sustainable use of plant genetic resources for 203

International Treaty on Plant Genetic Resources for Food and Agriculture (opened for signature 3 November 2001, came into force on 29 June 2004) accessed 4 January 2007.

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food and agriculture and the fair and equitable sharing of benefits derived from their use, in harmony with the UN CBD, for sustainable agriculture and food security. In the Seed Treaty, States establish a Multilateral System for Access and Benefit-Sharing that is meant to provide a efficient, effective and transparent framework to facilitate access to plant genetic resources for food and agriculture, and to share the benefits in a fair and equitable way. The Multilateral System applies to over 64 major crops and forages. The Governing Body of the Treaty, which is composed of the countries that have ratified it, sets out the conditions for access and benefit-sharing in a “Material Transfer Agreement”. Resources may be obtained from the Multilateral System for utilization and conservation in research, breeding and training. When a commercial product is developed using these resources, the Treaty provides for payment of an equitable share of the resulting monetary benefits, if this product may not be used without restriction by others for further research and breeding. If others may use it, payment is voluntary. The Treaty provides for sharing the benefits of using plant genetic resources for food and agriculture through information-exchange, access to and the transfer of technology, and capacity-building. Under the Treaty, a funding strategy was also established to mobilize funds for activities, plans and programmes to help small farmers in developing countries. This funding strategy also includes the share of the monetary benefits paid under the Multilateral System. The Treaty recognizes the contributions of farmers and their communities to the conservation and development of plant genetic resources, which provides the basis for Parties recognition of ‘farmers’ rights’ which include the protection of traditional knowledge, and the right to participate equitably in benefit-sharing and in national decision-making about plant genetic resources. It gives governments the responsibility for implementing these rights. The Seed Treaty came into force on 29 June 2004, ninety days after forty governments had ratified it. Governments that ratified it make up its Governing Body. The Governing Body addresses important questions, such as the level, form and manner of monetary payments on commercialization, a standard Material Transfer Agreement for plant genetic resources, mechanisms to promote compliance with the Treaty, and the funding strategy. There are twenty four references to ‘sustainable’ agricultural development, use and systems in the FAO Seed Treaty. Sustainable use of genetic resources is clearly recognised as an ‘Objective’ of the treaty. First, in the Preamble, Parties clearly acknowledge that “the conservation, exploration, collection, characterization, evaluation and documentation of plant genetic resources for food and agriculture are essential in meeting the goals of the Rome Declaration on World Food Security and the World Food Summit Plan of Action and for sustainable agricultural development for this and future generations, and that the capacity of developing countries and countries with economies in transition to undertake such tasks needs urgently to be reinforced”… they also recognize that this “Treaty and other international agreements relevant

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to this Treaty should be mutually supportive with a view to sustainable agriculture and food security…” In Part 1 which establishes Objectives at Article 1.1 States agree that the “objectives of this Treaty are the conservation and sustainable use of plant genetic resources for food and agriculture and the fair and equitable sharing of the benefits arising out of their use, in harmony with the Convention on Biological Diversity, for sustainable agriculture and food security.” It is a clear recognition of ‘sustainable use’ as an objective of an international law, and furthermore sets sustainable agriculture as one of two ultimate purposes of the treaty. This has particular implications. In Article 6, the Parties actually define fairly clearly what is meant by sustainable use of plant genetic resources. And sustainable use, in this context, involves the development and maintenance of legal measures. At 6.1 the Contracting Parties accept a duty. They “shall develop and maintain appropriate policy and legal measures that promote the sustainable use of plant genetic resources for food and agriculture.” In 6.2, the Parties further define this as: “sustainable use of plant genetic resources for food and agriculture may include such measures as: (a) pursuing fair agricultural policies that promote, as appropriate, the development and maintenance of diverse farming systems that enhance the sustainable use of agricultural biological diversity and other natural resources; (b) strengthening research which enhances and conserves biological diversity by maximizing intra- and inter-specific variation for the benefit of farmers, especially those who generate and use their own varieties and apply ecological principles in maintaining soil fertility and in combating diseases, weeds and pests; (c) promoting, as appropriate, plant breeding efforts which, with the participation of farmers, particularly in developing countries, strengthen the capacity to develop varieties particularly adapted to social, economic and ecological conditions, including in marginal areas; (d) broadening the genetic base of crops and increasing the range of genetic diversity available to farmers; (e) promoting, as appropriate, the expanded use of local and locally adapted crops, varieties and underutilized species; (f) supporting, as appropriate, the wider use of diversity of varieties and species in on-farm management, conservation and sustainable use of crops and creating strong links to plant breeding and agricultural development in order to reduce crop vulnerability and genetic erosion, and promote increased world food production compatible with sustainable development; and (g) reviewing, and, as appropriate, adjusting breeding strategies and regulations concerning variety release and seed distribution.”

This is important for two reasons. First, the Seed Treaty is a recent instrument, and therefore offers an insight into States’ most current conception of the legal status of sustainable development. Second, in the treaty, States focuses on ‘sustainable use’ in one particular context, that of plant genetic resources

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for food and agriculture. In this specific sector, it appears possible to pinpoint fairly precisely the meaning of sustainable use of the resource, and the type of measures that are required to ensure that it takes place. The commitment ‘to promote sustainable development’ is also found in international trade treaties, and indeed, has been interpreted by decisions of the Appellate Body of the World Trade Organization and other trade tribunals, as has been discussed elsewhere.204 While European States have set sustainable development as an overarching objective for economic integration, there are also multiple references to a principle of sustainable development in the same treaties. In the Preamble of the 1992 Treaty on European Union (Maastrict Treaty), States noted their determination to: “promote economic and social progress for their peoples, within the context of the accomplishment of the internal market and of reinforced cohesion and environmental protection, and to implement policies ensuring that advances in economic integration are accompanied by parallel progress in other fields, […]”205 As such, the European Union itself was formed partly out of a desire to ensure more balanced progress on social and environmental, as well as economic objective. The first post-Rio European treaty amendment, the Amsterdam Treaty, was negotiated in 2005 and entered into force in 1997. In this agreement, European member States adopted a principle of sustainable development as a binding norm, linking it to a requirement to integrate environmental considerations into the development process. The revised preamble establishes the Parties determination: “to promote economic and social progress for their peoples, taking into account the principle of sustainable development and within the context of the accomplishment of the internal market and of reinforced cohesion and environmental protection, and to implement policies ensuring that advances in economic integration are accompanied by parallel progress in other fields[…].”206 The Amsterdam Treaty further stressed the relationship with environmental protection by inserting a “crosscutting” Article 3c of the EC Treaty [now Article 6]: “Environmental protection requirements must be integrated into the definition and implementation of the Community policies and activities referred to in Article 3, in particular with a view to promoting sustainable development.” The two provisions suggest that European States now consider sustainable development as a binding customary principle, and link it principally with the integration of the environment into development processes. Subsequent treaty amendments confirm this view. The signed but not ratified Treaty establishing a Constitution for Europe (2005) proposed a further amendment of Article 6, underlining the character of sustainable development as a principle. Article II-97 with the title “Environmental protection” contained: “A high level of environmental protection and 204 205

Gehring and Cordonier Segger (2005). See also Cordonier Segger (2006) 313-339.

Treaty on the European Union (‘Maastricht Treaty’) 1992.

206

EU (EU) Treaty of Amsterdam 1997.

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the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.” The replacement Treaty of Lisbon [Reform Treaty] (2007) did not revise Article 6 [future Article 11 of the Treaty on the Functioning of the European Union], but also refers to sustainable development as an objective of the European Union itself. For example, the new formulation of the objectives of the EU in Article 2.5 Treaty on the European Union states: “[…] shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment […]”. However, the Treaty of Lisbon also confirmations a sustainable development principle, as the treaty declares the Charter of Fundamental Rights of the European Union207 binding in all Member States (with the exception of the UK and Poland, who have issued a reservation). Charter Article 37 states that: “A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.” State Parties to cases in the European Court of Justice have repeatedly referred to both an objective of sustainable development and a principle of sustainable development to justify their arguments. For instance, competence (jurisdictional) decisions at the European level concerning the Convention on Cooperation for the Protection and Sustainable Use of the River Danube,208 the ratification of the Cartagena Protocol209 and cooperation with the Philippines210 have all led European States to bring arguments related to sustainable development. An interesting opinion was rendered by Advocate General Leger, who in order to strengthen his interpretation of environmental law principles, explained: “In future, the principles framing environmental law could be accorded increased importance, since the draft Treaty establishing a Constitution for Europe, adopted by the Heads of State and Government of the Member States on 18 June 2004, lays down among the objectives of the European Union the sustainable development of Europe, and even of the earth, as well as a high level of protection and improvement of the quality of the environment. The Charter of Fundamental Rights of the European Union, proclaimed on 7 December 2000 at Nice […] provides, for its part, that ‘[a] high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development’. It is also appropriate to point out that 207

Official Journal C 303 of 14 December 2007.

208

Case C-36/98, Spain v. Council (Convention River Danube) [2001] ECR I 779 [34].

209 210

Opinion 2/00 (Cartagena Protocol), Opinion of 6 December 2001 [27].

C -403/05, European Parliament v. Commission (Border cooperation with Philippines), ECJ Judgment of 23 October 2007 [56].

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environmental protection is a feature of the constitutions of several Member States.”211 This last sentence shows that AG Leger sees sustainable development as both an objective and a principle which can be found in the traditions of the Member States constitutions (as found by the ECJ in its human rights jurisprudence).212 Since the 1992 Rio Earth Summit, as noted above, international tribunals and courts have also begun to pronounce on sustainable development. While certain decisions, noted above, appear to support the contention that sustainable development is a customary principle of international law, others appear to adopt the second approach. For instance, in the Gabcikovo-Nagymaros Case,213 the majority stated that: “It is clear that the Project’s impact upon, and its implications for, the environment are of necessity a key issue. The numerous scientific reports which have been presented to the Court by the Parties — even if their conclusions are often contradictory — provide abundant evidence that this impact and these implications are considerable. In order to evaluate the environmental risks, current standards must be taken into consideration. This is not only allowed by the wording of Articles 15 and 19, but even prescribed, to the extent that these articles impose a continuing — and thus necessarily evolving — obligation on the parties to maintain the quality of the water of the Danube and to protect nature. The Court is mindful that, in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage. Throughout the ages, mankind has, for economic and other reasons, constantly interfered with nature. In the past, this was often done without consideration of the effects upon the environment. Owing to new scientific insights and to a growing awareness of the risks for mankind — for present and future generations — of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development. For the purposes of the present case, this means that the Parties together should look afresh at the effects on the environment of the operation of the Gabcíkovo power plant. In particular they must find a satisfactory solution for

211

Opinion of Advocate General Léger in Case C-277/02 EU-Wood-Trading GmbH v. Sonderabfall-Management-Gesellschaft Rheinland-Pfalz mbH. [2004] ECR I 11957.

212 213

See Case 29/69 Stauder v. Ulm [1969] ECR 419 and Case 4/73 Nold [1974] ECR 491.

Gabčíkovo-Nagymaros (n 17) [140].

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the volume of water to be released into the old bed of the Danube and into the side-arms on both sides of the river.” (emphasis added)

Due to the specific facts of this case, it appears at first glance that only procedural requirements were imposed on the Parties in connection with the ‘concept’ of sustainable development. However the Court did, essentially, order the Parties to integrate environmental protection into their development project by requesting them to ‘look afresh at the effects on the environment…’ and ‘find a satisfactory solution.’ The majority could be said to be taking a principle of integration into account in order to address the ‘need’ to reconcile economic development with the protection of the environment, but also being required to realise a commitment to contribute to a sustainable development objective. The Nuclear Tests Case (esp. Judge Weeramantry’s Dissent),214 the Kasikili / Sedudu Case (esp. Judge Weeramantry’s Dissent),215 the findings in the Tribunal Award of the Iron Rhine Arbitration216 and the Order on Provisional Measures in the Pulp Mills on the River Uruguay Case217 of the International Court of Justice could also be interpreted in a way that supports this characterization. Finally, while as discussed above, many national laws do refer to a principle of sustainable development when focusing on their intention to integrate environmental and social issues into development processes, many other national laws and policies adopted since the 1992 Rio Earth Summit, in particular, appear to set sustainable development as an objective rather than principle.218 And the views of national courts on the topic are, at best, rather mixed.219 214 215

Nuclear Tests Case (n 157) [341]-[344].

K asikili/Sedudu Island (n 185) [87]-[88] (Dissenting opinion by Judge Weeramantry).

216 217

Iron Rhine (n 117) [58]-[59].

P ulp Mills (n.120) [80].

218

Peru´s State Policies on Sustainable Development and Environment states: “We are committed to the integration of the environmental, social, cultural and territorial policies as a means to overcome poverty and promote the sustainable development of Peru” (translation by author) accessed 6 January 2008; Colombia’s 2007 Report on the National Development Plan states: “The vision of growth and development of Colombia must necessarily be based in an adequate articulation of the economical, social and environmental dimension, so that the sustainable development of the country could be guaranteed” accessed 18 January 2008. For a survey of advances in more than 60 countries of all regions of the world, see FAO, Law and Sustainable Development Since Rio: Legal trends in agriculture and natural resource management FAO Legislative Study 73 (FAO, Rome 2002).

219

National cases applying the concept of sustainable development include: Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC 2715; Bulankulame v. Secretary, Ministry of Industrial Development and Others [2000] 3 SriLR 243 (the Eppawela Case 2000, Supreme Court of Sri Lanka). In Rajendra Parajuli and Others v. Shree Distillery Pvt. Ltd. & Others, the Supreme Court of Nepal (Writ No. 3259, 1996) stated that sustainable development means “every industry has an obligation to run its development activities without creating environmental deterioration. The environment should not be viewed narrowly. It is

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To conclude with regards the legal status of sustainable development in international law since the 1987 Brundtland Report, evidence of an international commitment by States to sustainable development is significant and weighty. States have made numerous unilateral and consensus declarations committing to sustainable development, including in Rio in 1992, New York in 1997, and Johannesburg in 2002. There are records of formal statements from States expressing national commitments to sustainable development through sixteen years of international processes on these issues, including in the UN Commission on Sustainable Development. There is an impressive body of international treaty law, including many treaties which explicitly recognize principles related to sustainable development. International tribunals have, even quite recently, recognized some form of State right to promote sustainable economic development and also a principle of international law that environmental protection must be integrated into the socio-economic development process in certain ways. There is a growing body of national jurisprudence and legislation for sustainable development. There are also records of State votes adopting sustainable development policies, strategies and objectives in many international institutions to implement strategies for sustainable development. However, while some of this evidence explicitly recognizes sustainable development as a principle relating to the integration of environmental protection and social and economic development processes, a great deal more advances the concept as an objective, referring to international law on sustainable development, to States’ resolution to promote sustainable development, or to need to realize sustainable development, with frequency. Even Principle 4 of the Rio Declaration actually formulates sustainable development as an objective, when it 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.” Essentially, much of the evidence that might demonstrate that States have recognized a customary principle, right or duty to promote sustainable development by integrating environmental protection in socio-economic development process can also be used to demonstrate that States consider sustainable development an objective of international law. The first proposition still seems to be under development, with a great deal riding on future international legal interpretations of the decisions in the recent Iron Rhine Railways and Pulp Mills on the River Uruguay cases. The second proposition is a great deal more certain.

imperative for any industry to be cautious towards the environment while it is in operation.” The Court ordered the company to comply with a prior agreement to keep the environment free of pollution in the affected area.

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4 Proposed Principles of International Law on Sustainable Development

While the question of sustainable development itself as a customary legal norm may not yet be resolved, it is clear that there exists a growing body of international law on sustainable development. As such, as was predicted in the Annex on Legal Principles to the Brundtland Report,220 a body of rules of international law related to sustainable development is emerging. When States adopt sustainable development as a policy objective of an international treaty, they set international legal norms in place to realise this treaty purpose. For instance, the principle of common but differentiated responsibilities governs the way that burdens to reduce greenhouse gases are apportioned among States, serving the sustainable economic development objective of the 1992 UN FCCC.221 Just as the prohibition on armed attack serves to maintain world peace, and a prohibition on trade in endangered species serves to conserve nature, so might a prohibition on exhaustion of a trans-boundary natural resource without good faith consultation with affected States serve to promote sustainable development. Such principles which aim to contribute to and achieve sustainable development may come to be used so often, and to be accepted so generally, that they do, indeed, gain recognition as customary international rules themselves, binding on all States that have not persistently objected. Existing universal adoption of these principles to address specific international issues, moreover, might support a contention that in these contexts (climate change, biodiversity, desertification, law of the sea), they have already reached such a status. The practical implications of such a contention, in some nearly universal membership treaties which explicitly commit to these principles, might be minimal, but it does not discount the value of examining the principles themselves.



4.1 The Process of Making Principles on Sustainable Development

The process of developing principles of international law related to sustainable development has been reasonably complex. The most important undertakings ran parallel to the global policy making events outlined above, and included the process of elaborating the 1972 Stockholm Declaration, the 1987 Brundtland Commission’s Legal Experts Group on Principles of International Law for the Protection of the Environment and Sustainable Development, the 1992 Rio Declaration, the 2002 New Delhi Declaration of the International Law Association, and other efforts. 220

‘Our Common Future’ UN World Commission on Environment and Development Rep (4 August 1987) UN Doc A/42/427.

221

R ajamani (2006).

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It is worth underlining the role played by the Legal Annex to the Brundtland Report, which built on the Stockholm Declaration but included a considered legal analysis, commentary and a clear normative proposal for each of their proposed Principles. The first Annex of the Brundtland Report proposed the adoption of 22 legal principles, divided in four groups, meant to address the challenges identified in the report and guide the future law-making in the areas of environmental protection and sustainable development. The first group, named “General Principles, Rights, and Responsibilities”, includes the recognition of the right to a healthy environment as a human right.222 In this section, sustainable development is expressed as a means to ensure that the conservation of natural resources must be integrated into any development activity. The second group, “Principles, Rights and Obligations Concerning Transboundary Natural Resources and Environmental Interferences” lays the foundations of inter-state obligations related to sustainable development. These include the principles of non-discrimination and equitable use of transboundary resources; and of cooperation in the protection, prevention and abatement of environmental problems. The last two sections, comprising one principle each one, deal with State Responsibility and Compensation, and the peaceful settlement of environmental disputes. The 1992 Rio Declaration echoes many of the Principles recommended by the Brundtland Report, and was clearly directly influenced by its findings. Widely accepted as ‘soft law’223 the central concept of the 1992 Rio Declaration is sustainable development, as defined by the Brundtland Report. These views are also reflected in Principle 1, which states that “[h]uman beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.” Principle 2, as mentioned above, reaffirms that States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. Principle 3 states that “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.” Principle 4 states that “In order to 222

T his right was later recognized by the Organization of American States as a fundamental human right in a Protocol to the American Convention on Human Rights: Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, “Protocol of San Salvador” (adopted 17 November 1988, entry into force 16 November 1999) O.A.S. Treaty Series No. 69 (1988) art. 11.

223

Gabčíkovo-Nagymaros (n 17) [70]-[71]. See also Boyle (2006) 142; Cordonier Segger and Khalfan (2005); French (2005) and FAO, Law and Sustainable Development Since Rio: Legal Trends in Agriculture and Natural Resource Management FAO Legislative Study 73 (FAO, Rome 2002).

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achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.” Further, Principle 10 maintains that “States shall facilitate and encourage public awareness and participating by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.” Principle 14 reads “States should effectively cooperation to discourage or prevent the relocation and transfer to other States of any activities and substances that cause severe environmental degradation or are found to be harmful to human health.” Principle 15 states that “the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” And Principle 16 states that “National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.” These principles are reaffirmed and specifically mentioned throughout the 1992 Agenda 21. The Rio Declaration was followed by the Report of the Expert Group Meeting on Identification of Principles of International Law for Sustainable Development, which was commissioned by the UN Division for Sustainable Development in accordance with a request by States at the second session of the UN Commission on Sustainable Development in 1994, and released in September, 1995.224 This early Report identifies nineteen principles and concepts of international law for sustainable development in the context of the Rio Declaration, Agenda 21, international treaties and other legal instruments at that time. As noted in the Report, the principles are organized in five clusters, focused on one fundamental principle of interrelationship and integration (which the experts considered, in their view, “forms the backbone of sustainable development”); then eight principles and concepts related to the environment and development (including several of the principles highlighted above); three principles related to international cooperation; three principles related to participation, decision-making and transparency; and four techniques of dispute avoidance, resolution procedures, monitoring and compliance. An additional eight ‘sub-principles’ are also discussed, and the Report notes that their study is not exhaustive. The Report did not resolve international debates on these questions. In 1997, in light of the recommendations of the Report, States noted in the Programme of Action for Further Implementation of Agenda 21 at 14 that: 224

Division for Sustainable Development, Report of the Expert Group Meeting on Identification of Principles of International Law for Sustainable Development (Geneva, Switzerland, 26-28 Sept 1995) Background Paper for the UN CSD New York, 18 April – 3 May 1996 (last accessed Feb 01 2008).

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“Progress has been made in incorporating the principles contained in the Rio Declaration on Environment and Development – including the principle of common but differentiated responsibilities, which embodies the important concept of and basis for international partnership; the precautionary principle; the polluter pays principle; and the environmental impact assessment principle – in a variety of international and national legal instruments. While some progress has been made in implementing United Nations Conference on Environment and Development commitments through a variety of international legal instruments, much remains to be done to embody the Rio principles more firmly in law and practice.”

In 2002, the International Law Association’s Committee on the Legal Aspects of Sustainable Development released its New Delhi ILA Declaration on Principles of International Law relating to Sustainable Development as a Resolution of the 70th Conference of the International Law Association in New Delhi India, 2-6 April 2002.225 Adopting the approach mentioned above, the Declaration notes that “sustainable development is now widely accepted as a global objective and that the concept has been amply recognized in various international and national legal instruments, including treaty law and jurisprudence at international and national levels…” It outlines seven principles of international law on sustainable development. These principles were highlighted in the Brundtland Report and the 1992 Rio Declaration, are central principles of most international treaties related to sustainable development, and are recognized and reaffirmed throughout the 2002 Johannesburg Plan of Implementation. Detailed analysis is beyond the scope of this chapter and can be found elsewhere.226 However, given the comprehensive and balanced decade of study and analysis conducted by the Committee and the relative normative clarity of their findings, the 2002 New Delhi Declaration provides the most current benchmark of the important principles of international law on sustainable development.227 Indeed, this Declaration, though essentially a recommendation of a global legal experts committee after ten years of study and review, was included as a submission from the Netherlands in the outcomes of the 2002 World Summit on Sustainable Development. As such, a short survey is provided below.

225

See “ILA New Delhi Declaration of Principles of International Law Relating to Sustainable Development” (2002) 2 Intl Environmental Agreements 209; Schrijver and Weiss (2002); see also International Law Association, Report of the Expert Group on Identification of Principles of International Law for Sustainable Development (ILA, London 1995); International Law Association, Report of the Sixty-Second Conference (ILA, Seoul 1987) 1-11, 409-87.

226 227

Schrijver and Weiss (2004) 1-152, 699-706; Cordonier Segger and Khalfan (2001) 95-191; French (2005).

Cordonier Segger (2004); FAO, International Law and Sustainable Development Since Rio (FAO, Rome 2002); Cordonier Segger and others (2003).

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4.2 The ILA New Delhi Declaration of Principles of International Law Relating to Sustainable Development

The New Delhi Declaration starts by recognizing the need to further develop international law in the field of sustainable development, with a view to according due weight to both the developmental and environmental concerns, in order to achieve a balanced and comprehensive international law on sustainable development, as called for in Principle 27 of the Rio Declaration and Chapter 39 of Agenda 21 of the UN Conference on Environment and Development. Then, seven ‘principles’ are highlighted.



4.2.1 The Duty of States to Ensure Sustainable use of Natural Resources

States have sovereign rights over their natural resources, and a duty not to cause (or allow) undue damage to the environment of other States in the use of these resources. As discussed above, this principle was recognized in Stockholm Declaration Principle 21 and the Rio Declaration Principle 2, where States noted that: “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”228 According to the ILA, States are under a duty to manage natural resources, including natural resources within their own territory or jurisdiction, in a rational, sustainable and safe way so as to contribute to the development of their peoples, with particular regard for the rights of indigenous peoples, and to the conservation and sustainable use of natural resources and the protection of the environment, including ecosystems. Further, the New Delhi Declaration notes, States must take into account the needs of future generations in determining the rate of use of natural resources, and are under a duty to avoid wasteful use of natural resources and promote waste minimization policies. Particular meanings for ‘rational, sustainable and safe ways’ of management, and for how the needs of future generations can be taken into account, likely depends on the actual resources in question, and the limits of present technology and science of the managers. Finally, this principle recognizes that certain resources may be ‘common concerns of mankind’ (e.g. the climate system, biological diversity and fauna and flora of the Earth) or part of the ‘common heritage of mankind’ (e.g. the resources of outer space and

228

R io Declaration (n 38).

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celestial bodies, sea-bed, ocean floor and subsoil beyond the limits of national jurisdiction).229 Though a comprehensive review is beyond the scope of this chapter, it should be noted that this principle has been reflected and strongly reaffirmed in several international treaties on sustainable development with extremely broad membership in the past two decades. In the UN Framework Convention on Climate Change, at the Preamble, Parties recognize the rights of sovereignty over natural resources and related responsibilities to protect the world’s climate system. Similar recognition is found in the Preamble of the UN Convention on Biological Diversity, and is highlighted as a principle of sustainable use of biological resources in Article 3 and Article 10. Similarly, in the UN Convention to Combat Desertification and Drought, at Art 3(c), Parties agree on a principle towork toward sustainable use of scarce water and land resources and in Art 10.4 on national action plans, Art 11 on regional and sub-regional actions, Art 17.1(a) on research and development, and Art 19.1(c) and (e) on capacity-building, the principle is reaffirmed. The WTO Agreement also recognizes, in its Preamble, the need to ensure optimal use of the world’s resources in accordance with the objective of sustainable development. And the FAO Seed Treaty, at Art 1.1, sets the conservation and sustainable use of plant genetic resources for food and agriculture, making the commitment operational in Art 6 which lays out a series of specific law and policy measures that States should adopt to ensure sustainable use of plant genetic resources.



4.2.2 The Principle of Equity and the Eradication of Poverty

As part of sustainable development, states shall promote a just distribution of resources among members of the present generation, and shall take into account the needs of future generations in making decisions about allocations of resources. Furthermore, States have a duty to progressively reduce poverty. According to the New Delhi Declaration, the principle of equity refers to both inter-generational equity (a right of future generations to enjoy a fair level of the common patrimony) and intra-generational equity (a right of all peoples within the current generation of fair access to the current generation’s entitlement to the Earth’s natural resources). The definition of ‘fair’ remains to be specified, but in the Declaration, inter-generational equity is described as evoking an obligation to take into account the long-term impact of activities and to sustain the resource base and the global environment for the benefit of future generations. The Declaration also recognizes the right to development, while noting that this must be implemented so as to meet developmental and environmental needs of present and future generations in a sustainable and equitable manner. According to the New Delhi Declaration, the principle of equity 229

Cordonier Segger and Khalfan (2001) 109-122 argues that both central norms highlighted by this principle have been recognised as rules of customary international law. See also Bottriel and French (2005).

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includes a duty to cooperate to secure development opportunities of developed and developing countries, and duty to co-operate for the eradication of poverty, as noted in Chapter IX on International Economic and Social Co-operation of the Charter of the United Nations. The Declaration argues that whilst it is the primary responsibility of the State to aim for its own conditions of equity, all States which are in a position to do so have a responsibility to assist.230 This principle is also clearly reflected in international treaty law on sustainable development. In the UN Convention on Biological Diversity, the principle is reflected in Article 15.7 on access to the benefits of biological resources and related obligations to ensure that the benefits are equitably shared. In the Preamble of the 1992 UN Framework Convention on Climate Change, Parties commit to take into full account the legitimate priority needs of developing countries for the achievement of sustained economic growth and the eradication of poverty, while also noting their determination to protect the climate system for present and future generations. Indeed, the first two principles of the treaty, as laid out in Article 3, state an intention to “protect the climate system for the benefit of present and future generations of humankind, on the basis of equity...” and commit that accordingly, “developed country Parties should take the lead in combating climate change…” The second principle notes that “the specific needs and special circumstances of developing country Parties, especially those that are particularly vulnerable to the adverse effects of climate change, and of those Parties, especially developing country Parties, that would have to bear a disproportionate or abnormal burden under the Convention, should be given full consideration.” In the UN Convention to Combat Desertification and Drought, Parties included provisions on poverty eradication and intra-generational equity at Article 16(g) on the sharing of traditional knowledge sharing, at Article 17.1(c) on research and development related to traditional knowledge, and in Article 18.2(b) on technology transfer. Further, a responsibility for inter-generational and intra-generational equity in sharing the benefits of plant genetic resources is recognised in the Preamble of the FAO Seed Treaty, as well as at Article 1.1 as an objective of access and benefit-sharing provisions, and Articles 10, 11, 12, 13 which operationalize the principle by establishing a multilateral system of access and benefit sharing for plant genetic resources.



4.2.3 The Principle of Common but Differentiated Obligations

According to the New Delhi Declaration, this principle holds that the common responsibility of states for the protection of the environment 230

Cordonier Segger and Khalfan (2001) 122-132 argues that while this principle guides a significant number of social and other treaties related to sustainable development, it has not yet been recognised as a customary rule, due in part to difficulties in identifying with certainty the needs of future generations and a lack of consensus between States on actual obligations related to distributional justice. See also Hepburn and Khalfan (2005).

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at the national, regional and global levels shall be balanced by the need to take account of different circumstances, particularly in relation to each state’s historical contribution to the creation of a particular problem, as well as its ability to prevent, reduce and control the threat. Developed countries bear a special burden of responsibility in reducing unsustainable patterns of consumption and providing assistance to developing countries to meet global sustainable development goals.231 This principle is reflected in UN Framework Convention on Climate Change at its Preamble, as well as in Article 3 on Principles and Article 4 on commitments which establishes the differentiated obligations of Annex 1 and nonAnnex 1 Parties. Parties also affirm and operationalise the principle in the Kyoto Protocol at Article 10, which recognizes common but differentiated responsibilities to establish inventories and programmes to abate greenhouse gas emissions, and Article 12 which operationalizes the principle by establishing a Clean Development Mechanism to help cover the costs of low emission technologies and energy systems. The principle is also prominent in UN Convention to Combat Desertification, where Parties reaffirm, in Article 3 on principles, the need to respect the common but differentiated responsibilities of States, in Articles 4 through 6, which lay out the obligations for affected and developed country Parties, and in Article 7 which includes specific provisions for Africa. The principle is also prominently reaffirmed and made operational in the FAO Seed Treaty at Article 7.2(a) which provides for developing country’s different capabilities, at Article 8 which commits to technical assistance, at Article 15.1(b)iii which grants special benefits to least developed countries and to centres of diversity, and in Art 18.4(d) on financing implementation of the treaty.



4.2.4 The Principle of the Precautionary Approach to Human Health, Natural Resources and Ecosystems

In order to protect the environment, natural resources and human health, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent degradation. The precautionary principle shifts the burden of proof to those proposing activities which might cause serious harm. It favours prevention over re-mediation, focuses on the relevance and robustness of scientific data to development decision-making and carries an

231

Cordonier Segger and Khalfan (2001) 132-143 argues that while this principle guides a significant number of treaties related to sustainable development, it has not yet been recognised as a customary rule, due in part to a lack of consensus between States on the extent of greater responsibility by developed countries. See also Ahmad (2005).

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obligation to use precautionary measures in proportion to potential damage and the likelihood or degree of risk involved in each case.232 The principle is reflected in UN Convention on Biological Diversity in its Preamble, and made operational through Article 14.1(b) which addresses likely adverse impacts and Article 8(g) on transboundary movement of living modified organisms (LMOs). It is also central to the Cartagena Protocol on Biosafety, both through explicit reaffirmation of the principle in its Preamble, at Article 1 that lays out the precautionary objective of the Protocol, and in the way that it is operationalised at Article 7 on advanced informed agreement requirements that must be fulfilled prior to the first transboundary movement of an LMO, at Article 10.6 with regards the decision-making procedures that will be followed in implementation of the Protocol, at Article 11.8 which establishes simplified procedures for LMOs destined for food, feed and processing uses, at Article 15 on risk assessment which references Annex III.4 in which precautionary decision-making is explicitly permitted. Precaution also appears in the UN Framework Convention on Climate Change at Article 3 as a Principle of the treaty. The precautionary principle is outlined in the 1998 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, which requires exporters of certain hazardous substances to obtain the prior informed consent of importers before proceeding. The 2001 Stockholm Convention on Persistent Organic Pollutants acknowledges, at its Preamble, that “precaution underlies the concerns of all the Parties and is embedded within this Convention.” At Article 1, Parties note that they are mindful of the precautionary approach as set forth in Principle 15 of the Rio Declaration in setting their objective to protect human health and the environment from persistent organic pollutants. At Article 8, making precaution operative, Parties agree to use “a precautionary manner” when deciding which chemicals to list in the Annexes of the Convention, where lack of full scientific certainty shall not prevent a proposal to list from proceeding. Further, Part V(B) of Annex C specifies that “precaution and prevention” should be considered when determining the best available techniques. In the 1995 Agreement for the Implementation of the Provisions of the U.N. Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks at Article 6, Parties agree that “States shall apply the precautionary approach widely to conservation, management and exploitation of straddling fish stocks and highly migratory fish stocks… States shall be more cautious when information is uncertain, unreliable, or inadequate. The absence of adequate scientific information shall not be used as a reason for postponing or failing to take conservation and management measures.” The WTO Agreement on the Application of Sanitary and 232

Cordonier Segger and Khalfan (2001) 143-155 suggests that a good argument can be made that this principle is emerging as an international customary rule to address certain specific problems related to health, ecosystems and natural resources. See also Hepburn, Cordonier Segger and Gehring (2005).

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PhytoSanitary Measures, according to the WTO Appellate Body, enshrines the precautionary in Article 5.7 which permits provisional measures to be taken to restrict trade where scientific data is uncertain, though this does not exhaust its relevance in WTO law.233



4.2.5 The Principle of Public Participation and Access to Information And Justice

Sustainable development issues are best handled with participation of all concerned citizens, at the relevant level. According to this principle, States have a duty to ensure that individuals have appropriate access to “appropriate, comprehensible and timely” information concerning sustainable development that is held by public authorities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making relevant information available. Effective access to judicial and administrative proceedings, including redress and remedy, shall also be provided, in a way that respects privacy, confidential business information and does not impose undue financial burdens. According to the New Delhi Declaration, this principle relates to universal rights related to expression and association. There are three main elements. First, this principle holds that people should be able to participate in decision-making processes which affect and impact their lives and well-being. Second, in order to participate fully, the public must have access to adequate information. And third, citizens should have access to independent review if their concerns are not addressed.234 The 1992 Agenda 21 highlights this point. With regards to the establishment of judicial and administrative procedures, States noted at 8.18 that: “Governments and legislators, with the support, where appropriate, of competent international organizations, should establish judicial and administrative procedures for legal redress and remedy of actions affecting environment and development that may be unlawful or infringe on rights under the law, and should provide access to individuals, groups and organizations with a recognized legal interest.” And with regards to the provision of legal reference and support services, they stated at 8.19 that “Competent intergovernmental and non-governmental organizations could cooperate to provide Governments and legislators, upon request, with an integrated programme of environment and development law (sustainable

233

EC – Measures Concerning Meat and Meat Products (Hormones) (Compliance USA and Canada) (13 February 1998), WTO Doc WT/DS26/AB/R, WT/DS48/AB/R (Appellate Body Report) [124].

234

Cordonier Segger and Khalfan (2001) 156-166 notes that participation, including access to information and justice, is one of the most recognized and operationalized principles of treaty law on sustainable development, but may only be emerging as an international customary obligation between States, as consensus has mainly focused on its relevance in national decision-making. See also Bottriel and Cordonier Segger (2005).

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development law) services, carefully adapted to the specific requirements of the recipient legal and administrative systems.” The 1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters235 is an example of an international legal instrument based on this principle. Many international human rights instruments also provide specifically for public participation, access to information, and access to justice, including through the UN Commission on Human Rights itself, which has public participation procedures similar to those of the UN Commission on Sustainable Development. Provisions to ensure public participation in the international treaty-making processes are also reflected in UN Convention on Biological Diversity at Article 13 on public education and awareness, and Article 14.1(a) on participation in impact assessment. The Cartagena Protocol on Biosafety contains similar provisions at Article 23 on public awareness and participation; and the UN Convention to Combat Desertification reaffirms the principle in Article 3 (a), and in Article 10.2(f) which recommends public participation in the development of national action plans. The WTO Agreement contains provisions on consultation with non-governmental organizations at Article V.2, and the North American Agreement on Environmental Cooperation, which runs parallel to the North American Free Trade Agreement, allows citizens to make claims under Article 14 and 15 processes to prompt the investigation of non-enforcement of environmental laws. Furthermore, the FAO Seed Treaty, at Article 9.2(c), has specific provisions to recognize farmers rights to participate in decision-making concerning the sustainable use of plant genetic resources.



4.2.6 The Principle of Good Governance

In principle, States shall take measures to combat corruption, taking into account the negative effects of corruption on sustainable development. Good governance is based on respect for the rule of law, democracy, political accountability, government flexibility and responsiveness for its citizens. According to the New Delhi Declaration, this principle commits States and international organizations inter alia to adopt democratic and transparent decision-making procedures and financial accountability; to take effective measures to combat official or other corruption; to respect the principle of due process in their procedures and to observe the rule of law and human rights. The Declaration also notes that non-state actors should be subject to internal democratic governance and to effective accountability, and encourages corporate social responsibility and socially responsible investment among private actors. Good governance is specifically noted as a priority in the Johannesburg Plan of 235

Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (open for signature 25 June 1998, entry into force on 30 October 2001) 2161 UNTS 447, (1999) 38 ILM 517.

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Implementation, and the Commission on Human Rights Resolution 2001/72 on the Role of Good Governance in the Promotion of Human Rights has also underlined the importance of this principle.236 While an international organization or government that did not meet any of the ‘good governance’ criteria described above would certainly be subject to critique, international treaties are only just beginning to incorporate such obligations. The main treaty in this area is the UN Convention Against Corruption, 237 which is founded on international support for good governance. This Convention notes in its Preamble that corruption threatens the political stability and sustainable development of States, and obliges, as noted at Article 5.1, all State Parties to, in accordance with the fundamental principles of its legal system, develop and implement or maintain effective, coordinated anti-corruption policies that promote the participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability.” Further, Article 62.1 commits that with regards economic development and technical assistance, States will take measures to implement the Convention in their international cooperation, taking into account “the negative effects of corruption on society in general, in particular on sustainable development.” A commitment to good governance is also prominent in UN Convention to Combat Desertification at Article 3(c) which lays out the principles of the treaty, and Article 10.2(e) on establishing institutional frameworks for national action plans, as well as in Article 11 on sub-regional and regional action plans, and Article 12 on international cooperation.



4.2.7 The Principle of Integration and Interrelationship, in Particular in Relation to Human Rights and Social, Economic and Environmental Objectives

Principle 4 of the Rio Declaration 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.”238 As discussed earlier in this Chapter, if there is customary international rule of sustainable development, this principle is the most likely candidate. However, as the New Delhi Declaration itself recommends, such a norm 236

Cordonier Segger and Khalfan (2001) 166-170 argues that while this principle is becoming increasingly influential in international discourse, it is doubtful that it would be recognized as a customary rule due to lack of consensus among States on its actual meaning, normative character and practical implications. See also Chowdry and Skarstedt (2005).

237

United Nations Convention against Corruption (adopted 31 October 2003, entry into force 14 December 2005) (2004) 43 ILM 37, art. 62.1.

238

R io Declaration (n 38).

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could just as easily be characterized as the ‘integration principle.’ The Declaration strongly emphasizes recent developments in international consensus, such as the need to recognise the social and human rights pillar of sustainable development, essentially by advocating an integration principle which requires States to take social and human rights, as well as environmental priorities, into account in the development process. It further notes that in the interest of sustainable development, States should strive to resolve apparent conflicts between competing economic and financial, social and environmental considerations.239 One corollary of this principle that is enshrined in the 1972 Stockholm Declaration, was recommended by the Brundtland Report, and is central to the 1992 Rio Declaration, which is also recognized in the Preambles of both the UN Framework Convention on Climate Change and the UN Convention on Biological Diversity, involves the recognition that “States should enact effective environmental legislation, that environmental standards, management objectives and priorities should reflect the environmental and developmental context to which they apply, and that standards applied by some countries may be inappropriate and of unwarranted economic and social cost to other countries, in particular developing countries.” This recognition, like the right to promote sustainable economic development that is mentioned earlier (and enshrined as a principle of the UN Framework Convention on Climate Change), is important to understand the implications of integrating environmental protection with social and economic development – while there is a commitment to take priorities into account in decision-making, and seek mutually supportive, balanced solutions, this principle is not a trump card for the environment. It is a commitment to compromise in good faith. The principle is core to international treaties on sustainable development. It is reflected in the Preamble of the UN Convention on Biological Diversity and at Article 6 on integrating conservation and use objectives in policies and plans; in the Cartagena Protocol on Biosafety at the Preamble where trade and environment regimes are referred to as mutually supportive, and set in practice by Articles 2.4 and 2.5 on the relationship of the Protocol to other international instruments. The principle also governs the FAO Seed Treaty, in the Preamble of which Parties note the need for synergies between environment and development objectives, and in Article 5.1 they commit to promote an integrated approach to the use of plant genetic resources for food and agriculture. Arguably, the GATT at Article XX provides exceptions for health, environment and the conservation of natural resources in order to take social and environmental 239

Cordonier Segger and Khalfan (2001) 102-109 suggests that if formulated as a norm to regulate sustainable development-related decision-making processes, such as that States “must ensure that social and economic development decisions do not disregard environmental considerations and not undertake environmental protection without taking relevant social and economic implications into account”, this principle is highly likely to be recognized as a rule of customary international law. See also Jodoin (2005).

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objectives into account, and the NAFTA through Articles 103, 104 and 104.1, which govern the relationships with other accords, as well as Article 1114 on not lowering environmental standards to attract investment, and Article 2101 on general exceptions, also seeks to take environmental protection into account the development process related to trade. As such, several rather functional principles guide the main international treaties on sustainable development and are gaining recognition by States. While sustainable development could be considered a principle in itself, an ‘integration principle’ may also be considered one of several emerging norms which aim to promote or realize a policy objective of sustainable development. The norms identified by the Brundtland Report, the UN Commission on Sustainable Development and by the International Law Association, among others, are not exhaustive. And in the most part they not yet recognized as binding rules of customary international law. In some cases, they might never be. However, they are increasingly made operational in binding international treaties, forming part of international law and policy in the field of sustainable development.



4.3 A Principled Approach to International Law on Sustainable Development



4.3.1 Sustainable Development as an Interstitial Norm

There is, however, a second type of principle of international law that has been proposed in international legal scholarship, one which can be analysed from a combined international relations and international law perspective, and fits well with the concept of a regime discussed earlier. Commitments to sustainable development appear in most international statements and declarations related to environmental, social and economic issues since the 1987 Brundtland Report and the 1992 Rio Earth Summit. In international law, sustainable development has also featured as a principle or objective in most economic, social and environmental treaties involving developed and developing countries since those dates, and as both principle or concept by judges in national and international courts around the world. What, then, is the normative status of sustainable development in international law. Is sustainable development a binding principle of international customary law? Is it simply a broad policy goal, found in certain international treaties but without specific meaning? Or is it something else entirely? As mentioned above, it is not clear that ‘sustainable development’, as such, can be accurately described as a single emerging principle of international law, or as a customary norm that can eventually, through demonstrable state practice and opinio juris, be accepted as binding on all states. International legal obligations of sustainable development may, however, have been assumed with regard to certain economic development sectors, regional cooperation initiatives,

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or resource management challenges, in treaties and in international practice. However, it is not certain that sustainable development has yet become a binding customary norm of international law, in itself. But neither is it accurate to describe sustainable development as simply a vague international policy goal, void of normative value outside the confines of treaties. As observed by Judge Weeramantry in his extraordinary Separate Opinion in the Case Concerning the Gabcikovo-Nagymaros Dam (Hungary/ Slovakia),240 there is “wide and general acceptance by the global community” of sustainable development. Furthermore, the tribunals in both the Iron Rhine Railways arbitration, and the Pulp Mills on the River Uruguay clearly found the concept relevant. There is also emerging global consensus on the need to strengthen ‘international law on sustainable development’, and on the need for further implementation of this law. The sheer weight of legal instruments and treaties which have been set in place to implement the sustainable development obligations, and its significant procedural elements, argue against such a facile dismissal. Neither of these two options serves to accurately characterise sustainable development in international law, especially after the 2002 World Summit on Sustainable Development. Rather, recent developments in international law on sustainable development can be understood through a combination of two complementary approaches. First, ‘international law on sustainable development’ today describes a “group of congruent norms,”241 a corpus of international legal principles and treaties which aim to promote sustainable development, often in the areas of intersection between international economic law, international environmental law and international human rights law.242 Certain procedural and substantive norms and instruments, which help to balance or integrate these fields, form part of this body of international law and play a role in its implementation. Sustainable development may be a second and once marginalised objective of many environmental and economic treaties, but it is gaining prominence. Furthermore, several social and human rights treaties, inasmuch as they address development issues, are also incorporating a sustainable development objective. Second, as the object and purpose of international treaty law, sustainable development will be taken into account and will shape the interpretation of the treaty rules, and the future development and implementation of these expanding treaty regimes. Outside these agreements, the concept may still serve as a different type of norm in its own right,243 one that exerts a certain pull between conflicting international norms relating to environmental protection, 240 241

Gabčíkovo-Nagymaros (n 17).

L owe (1999) 26.

242 243

Cordonier Segger (2001); see FAO (n 227.); see also Cordonier Segger and others (2003).

L owe (2000) 214-215.

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social development and economic growth. Sustainable development, as presently applied in treaty negotiation or dispute settlement, can be described as a “meta-principle,” one that acts “upon other legal rules and principles – a legal concept exercising a kind of interstitial normativity, pushing and pulling the boundaries of true primary norms when they threaten to overlap or conflict with each other.”244 This characterisation provides an alternative explanation to the majority decision of the International Court of Justice (I.C.J.) in the GabčíkovoNagymaros case,245 and could also be used to analyse other more recent relevant decisions in arbitrations and provisional measures cases. From this viewpoint, the substantive aspect of the ‘interstitial norm’ is the requirement that all three sets of priorities be reflected in the substantive outcomes of a given dispute or conflict. While there are few bright lines, and no hard and fast rule, it is not ‘sustainable’ to allow one or the other priority to completely ‘fall off the table’ in situations where common international concerns are at stake. Viewed in this way, beyond treaty law, sustainable development can be invoked by judges and decision-makers to curb the worst social and environmental excesses of nations in economic development activities,246 and exert persuasive pressure for the internalisation of otherwise externalised or marginalised social, economic or environmental concerns. As Lowe observes, there is “an immense gravitational pull exerted by concepts such as sustainable development, regardless of their standing as rules or principles of lex lata. That is plain when they are used by judges as modifiers; but it is also true when they are used in the same way by states as they negotiate (either with other states, or within their own governmental apparatus) on ways of reconciling conflicting principles.”247



4.3.2 Defining International Law on Sustainable Development, and the Normative Force of a Commitment ‘to Promote Sustainable Development’

Sustainable development as a legal concept has been kept vague in the past.248 This was perhaps deliberate, in order to ensure that it 244 245

L owe (1999) 31.

Gabčíkovo-Nagymaros (n 17) [140].

246 247

Decleris (2000).

L owe (1999) 35.

248

One of the most compelling explanations for the early lack of clarity was presented by Stone (1994); “The term sustainable development is not merely vague – a masker of failed consensus – the way key terms in the U.S. Constitution are vague and require case by case elaboration. ‘Sustainable development’ functions to gloss over not only failed consensus, but a latent collision course. The chasm is less a failure of language ... than a poignant tussle between, roughly, Rich and Poor. The indigenous native who extinguishes a species for food is not trapped in orthodox semantics of conventional pre-materialist

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could be relevant in different local and global contexts, from many cultures and regions. But this vagueness has almost outlived its usefulness, particularly on the international level. As noted above, sustainable development can be defined as a new type of development that does not irreversibly deplete essential natural capital, one that integrates social, economic and environmental policies to enable improvements in present generations’ quality of life, in a way that takes the interests of the future into account. As discussed above, the recognition of a field of law on sustainable development is supported by many references made by governments in agreed consensus statements, from the 1992 Rio Declaration and Chapters 38 and 39 of the 1992 Agenda 21, from the 1997 Programme of Further Implementation of Agenda 21, and from the 2002 Johannesburg Declarations and Plan of Action from the World Summit for Sustainable Development. In response to the 1987 Brundtland Report, in 1992 governments committed to the “further development of international law on sustainable development, giving special attention to the delicate balance between environmental and developmental concerns.”249 Governments also recognized the “need to clarify and strengthen the relationship between existing international instruments or agreements in the field of environment and relevant social and economic agreements or instruments, taking into account the special needs of the developing countries…”250 Agenda 21 is clear on this point,251 and emphasizes the importance of ensuring that developing countries can participate in ‘treaty making in the field of international law on sustainable development.’ In 1992, States further called for urgent action to, for instance, to make laws and regulations more effective. At 8.17 of Agenda 21, they stated that “Governments, with the support, where appropriate, of competent international organizations, should regularly assess the laws and regulations enacted and the related institutional/administrative machinery established at the national/state and local/municipal level in the field of environment and sustainable development, with a view to rendering them effective in practice…” Further, they recognized at 8.20 the need to establish “a cooperative training network for sustainable development law,” stating that “[c]ompetent international and academic institutions could, within agreed frameworks, cooperate to provide, especially for trainees from developing countries, postgraduate programmes and in-service training facilities in environment and development law.” homo economus cost-benefit analysis. He is trapped in hunger (just as we, the rich, are so often trapped in moral blindness). There is no reason to suppose that killing off a species pains him less than it does us.” 249 250 251

Rio Declaration (n 38) principle 27; Agenda 21 (n 38) ch 39.

Ibid.

Ibid ch 39 [39.1] (a basis for action is identified).

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The 1997 Plan of Further Implementation of Agenda 21 underlines that: “it is necessary to continue the progressive development and, as and when appropriate, codification of international law related to sustainable development.”252And the 2002 Johannesburg Plan of Implementation requests the United Nations Commission on Sustainable Development to track, and take into account, “significant legal developments in the field of sustainable development, with due regard to the role of relevant intergovernmental bodies in promoting the implementation of Agenda 21 relating to international legal instruments and mechanisms.”253 In Dworkin’s terms, sustainable development might fit better into the category of a ‘policy’ objectives rather than legal rights or principles.254 As such, the normative consequences of a commitment to sustainable development may not be the same as a straightforward prohibition or prescription. However, if one adopts a more complex view of international law informed by both legal and international relations theorists such as Fuller255 and Krasner256, which defines international law as a tool to govern the relationships of states, a sustainable development objective can still be said to have normative force that is different in different specific contexts. For if international law is seen as part of a series of inter-actional regimes, a legal commitment to sustainable development has inter-stitial meaning and normative force both in international treaties, and in ‘soft law’ cooperation arrangements. A commitment to sustainable development encourages States to find a balance between overlapping international economic, social and environmental priorities and obligations, in the interest of development that can last over the long term. Such overlaps seldom result in direct conflicts, as can be seen by testing actual areas where international obligations appear to be opposed, taking into account Wesley Hohfeld’s approach of co-related norms,257 and the established conflict rules of the Vienna Convention on the Law of Treaties.258 However, in specific areas of law and policy, such overlaps can create constraints on the abilities of States specifically to regulate effectively to promote less unsustainable development. The principles of international law on sustainable development can offer guidance. In order to realize sustainable development, States have agreed inter alia to cooperate on certain matters of common global concern, to jointly manage certain transboundary natural resources in a way that is equitable and sustainable; to ensure that social and economic development decision-making and environmental protection is integrated; to respect the common 252 253

See in particular Further Implementation of Agenda 21(n. 59) [109]-[110].

Johannesburg Declarations and Plan of Implementation (n. 65) [148].

254 255

D workin (1977).

Fuller (1969) 224-242.

256 257

K rasner (1999) 41-72.

Hohfeld (2001)11-12.

258

Vienna Convention (n 183) art. 31.3.c.

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but differentiated responsibilities of developed and developing countries; to use precaution in the face of scientific uncertainty; and to undertake development decision-making in a way that is transparent and participatory. State commitments to sustainable development, as an objective of international law, may also have a residual normative force which can best be described as an interstitial norm. In essence, it is not clear whether a legally binding ‘principle of sustainable development’ has been accepted as custom as yet. However, a growing body of ‘international law in the field of sustainable development’ exists and is being implemented by States. As noted by Alan Boyle and David Freestone, “[e]ven if there is no legal obligation to develop sustainably, there may nevertheless be, through incremental development, law ‘in the field of sustainable development’.”259 What is international law on sustainable development? Twenty years after the Brundtland Report, it can be defined as a significant and rapidly evolving body of legal principles, treaties and instruments which govern intersections and integration of social, economic and environmental priorities for development processes that respect the interests of both present and future generations.260 And though the legal status of sustainable development is still being debated, much progress in regime development and implementation has actually been made in recent decades. At national and international levels, in legislature and binding ‘hard law’ treaty negotiations, in courtrooms and tribunals, and in the persuasive authority of ‘soft law’ declarations and state practice, State decision-makers and legal authorities increasingly perceive economic, social and environmental protection as complementary rather than as unrelated or opposing disciplines. Sustainable development requires coherence between social, economic and environmental objectives, at the international level. Governments in many treaties and regimes, particularly economic ones, have recently found themselves under pressure to link with, or take into account, significant developments in other areas of law related to sustainable development. For some, the decision of governments may be that further linkage or ‘integration’ is not a priority – often, the key to effectiveness is focus, adopting a relatively narrow mandate and fulfilling it. But for many others, progress toward a more ‘integrated’ approach might become a desirable goal – or even a legal requirement. In these regimes, ‘inter-locking mechanisms’ will need to be developed to ensure development processes can take into account relevant social, economic or environmental objectives, where lack of integration, coordination or coherence is affecting the ability of the institution or law to achieve its goals. These ‘inter-locking mechanisms’, which facilitate integration, can already be found in social, economic or environmental treaties and institutions, and are part of and governed by a growing body of sustainable development law. 259

Boyle and Freestone (1999) [17], citing Sands (1994).

260

Cordonier Segger and Khalfan (2005); on the process of development of international law in this manner, see Toope and Brunnée (2000); see also Lowe (2000) 214-215.

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In conclusion, a great deal of progress has been made since the 1987 Brundland Report, though much more is needed. When States commit to sustainable development in a treaty or international legal process, it is not legally meaningless. It involves an obligation to seek balance between sometimes conflicting priorities in the development process, in the interests of future generations. The balance can be achieved through procedures and substantive obligations which differ depending on the treaty instrument and the area of law and policy that it regulates. Turning to the future, legal scholars, civil society organizations, private sector actors, international organisations and States have increasingly begun to focus on implementation in different contexts, developing scientific and legal instruments to ensure more sustainable use or management of a particular resource, or to promote sustainable development by re-directing a specific type of economic activity. In some sectors, States have agreed to enact new laws, to implement new policies and measures, or to find new ways of interpreting or implementing existing norms. In these sectors, sustainable development has further, more specific meanings, which are agreed in international treaty law. In this way, international law on sustainable development is defining new rights and duties among States. The challenge for future legal scholarship – and action – will be to implement this global commitment in the interest of a common future.

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Bibliography Ahmad (2005) I. Ahmad, ‘The Principle of Common but Differentiated Responsibilities’, CISDL Legal Working Papers on Recent Developments in International Law Related to Sustainable Development (CISDL, Montreal 2005) (last accessed Feb 04 2008).

D’Amato (1990) A. D’Amato, ‘Agora: What Obligation Does Our Generation Owe to the Next? An Approach to Global Environmental Responsibility’ (1990) 84 AJIL 190.

D’Amato (1971) A. D’Amato, The Concept of Custom in International Law (Ithaca, Cornell University Press 1971).

Akehurst (1974-75) M. Akehurst, ‘Custom as a Source of International Law’ (1974-5) 47 B Ybk Intl L 1.

Allot (2002) P. Allot, The Health of Nations (CUP, Cambridge 2002).

Anaedu & Engfeldt (2002) Ositadinma Anaedu & Lars-Goran Engfeldt ‘Sustainable Development Governance’ accessed 1 January 2008.

Aust (2000) A. Aust, Modern Treaty Law and Practice (CUP, Cambridge 2000).

Baxter (1970) R. Baxter, ‘Treaties and Custom’ (1970) 129 Recueil des Cours 62.

Boyle (2008) A. Boyle “Between Process and Substance: Sustainable Development in the Jurisprudence of International Courts and Tribunals” in this volume.

Boyle (2006) A. Boyle, ‘Soft Law in International Law-Making’ in M Evans, ed International Law (2nd ed OUP, Oxford 2006).

Boyle and Freestone (1999) A. Boyle and D. Freestone (eds), International Law and Sustainable Development: Past Achievements and Future Challenges (OUP, Oxford 1999).

Bernhardt (1999) R. Bernhardt ‘Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights’ (1999) 42 German Ybk Intl L 11.

Bottriel and French (2005) K. Bottriel and D. French, ‘The Duty of States to Ensure Sustainable Use of Natural Resources’, CISDL Legal Working Papers on Recent

183

sustainable development in international and national law

Developments in International Law Related to Sustainable Development (CISDL, Montreal 2005) (last accessed Feb 04 2008).

Brown Weiss (1989) E. Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity (Transnational Publishers, New York 1989).

Brunnée (2002) J. Brunnée, “COPing with Consent: Lawmaking under Multilateral Environmental Agreements” (2002) 15 Leiden J Intl L 1.

Brunnée and Toope (2002) J. Brunnée and S. J. Toope, ‘The Changing Nile Basin Regime: Does Law Matter?’ (2002) 43 Harvard Intl L J 105.

Cardoso & Faletto (1979) F. H. Cardoso & E. Faletto, Dependency and Development in Latin America (University of California Press, Berkeley 1979).

Cheng (1965) B. Cheng, ‘United Nations Resolutions on Outer Space: ‘Instant’ International Customary Law’ (1965) 5 Indian J Int’l L 23.

Cheng (2006) B Cheng, General Principles of Law as Applied by International Courts and Tribunals (Grotius Classic Reprint Series CUP, Cambridge 2006).

Chinkin (1989) C Chinkin, ‘The Challenge of Soft Law: Development and Change in International Law’ (1989) 38 International Comparative Law Quarterly 850.

Chowdry and Skarstedt (2005) N. Chowdry and C.E. Skarstedt, ‘The Principle of Good Governance’, CISDL Legal Working Papers on Recent Developments in International Law Related to Sustainable Development (CISDL, Montreal 2005) (last accessed Feb 04 2008).

Cockcroft, Gunder Frank & Johnson (1972) J. D. Cockcroft, A. Gunder Frank & D. L. Johnson, Dependence and Underdevelopment: Latin America’s Political Economy (Anchor Books, New York 1972).

Cordonier Segger and Ivanova (2003) M. C. Cordonier Segger & M. Ivanova, ‘Sustainable Development Governance: Take Two’, a concept paper prepared at the request of the South African Chair of CSD 11, April – May, 2003, on file with author.

Cordinier Segger and Khalfan (2005) M. C. Cordonier Segger and A. Khalfan, Sustainable Development Law: Principles, Practices and Prospects (OUP, Oxford 2005).

184

chapter 2.1

sustainable development in international law

Cordonier Segger (2006) M. C. Cordonier Segger, ‘Sustainable Development in Regional Trade Agreements’ in L Bartels and F Ortino (eds), Regional Trade Agreements and the WTO Legal System (OUP, Oxford 2006).

Cordonier Segger (2004) M. C. Cordonier Segger, ‘Significant Developments in Sustainable Development Law and Governance: A Proposal’ (2004) 28 Natural Resources Forum 61.

Cordonier Segger and others (2003) M. C. Cordonier Segger and others, ‘Prospects for Principles of International Sustainable Development Law after the WSSD: Common but Differentiated Responsibilities, Precaution and Participation’ (2003) 12:1 R Eur Community Intl Environmental L 54.

Cordonier Segger, Khalfan and Gehring (2002) Cordonier Segger, Khalfan, Gehring, ‘International Environmental Governance for Sustainable Development’ accessed 5 January 2008.

Crawford (2006) J. Crawford, The Creation of States (2nd edn OUP, Oxford 2006).

Decleris 2000 M. Decleris, ‘The Law of Sustainable Development: General Principles, A Report for the European Commission’ accessed 1 January 2007.

Dworkin (1977) R. Dworkin, Taking Rights Seriously (Duckworth, London 1977).

Escobar (1995) A. Escobar, Encountering Development: The Making and Unmaking of the Third World (Princeton University Press, Princeton 1995).

Esteva (1992) G. Esteva, ‘Development’ in Wolfgang Sachs (ed), The Development Dictionary: A Guide to Knowledge as Power (Zed Press, London 1992).

Evans (2006) M. Evans, ed International Law (2nd ed OUP, Oxford 2006).

Experts Group on Environmental Law of the World Commission on Environment and Development (1987) Experts Group on Environmental Law of the World Commission on Environment and Development, Environmental Protection and Sustainable Development (Martinus Nijhoff, London 1987).

Fuller (1969) L. L. Fuller, The Morality of Law (Yale University Press, New Haven 1969).

French (2005) D. French, International Law and Policy of Sustainable Development (Manchester University Press, Manchester 2005).

185

sustainable development in international and national law

Ginthers, Denters and de Waart (1993) D. Ginthers, M. Denters and P. de Waart (eds), Sustainable Development and Good Governance (Kluwer Academic Publishers, Dordrecht 1995); Commission on Sustainable Development, ‘Sustainable Development: The Challenge to International Law. Report of a Consultation held at Windsor 27 to 29 April 1993’ (1993) 2:4 R Eur Community Intl Environmental L r1.

Geisinger (1999) A. Geisinger, ‘Sustainable Development and the Domination of Nature: Spreading the Seed of the Western Ideology of Nature’ (1999) 27 British Columbia Environmental Affairs L Rev 43.

Gehring and Cordonier Segger (2005) M. Gehring and M. C. Cordonier Segger (eds), Sustainable Development in World Trade Law (Kluwer Law International, London 2005).

Haggard and Simmons (1987) S. Haggard and B.A. Simmons, ‘Theories of International Regimes’ (1987) 41 Intl Organizations 491.

Handl (1990) G. Handl, ‘Environmental Security and Global Change: The Challenge to International Law’ (1990) 1 Ybk Intl Environmental L 25.

Handl (1998) G. Handl, ‘The Legal Mandate of Multilateral Development Banks as Agents for Change towards Sustainable Development’ (1998) 92 AJIL 641.

Hepburn and Khalfan 2005) J. Hepburn and A. Khalfan, ‘The Principle of Equity and the Eradication of Poverty’, CISDL Legal Working Papers on Recent Developments in International Law Related to Sustainable Development (CISDL, Montreal 2005) (last accessed Feb 04 2008).

Hepburn, Cordonier Segger and Gehring (2005) J. Hepburn, M. C. Cordonier Segger and M. Gehring, ‘The Principle of the Precautionary Approach to Human Health, Natural Resources and Ecosystems’, CISDL Legal Working Papers on Recent Developments in International Law Related to Sustainable Development (CISDL, Montreal 2005) (last accessed Feb 04 2008).

Hohfield (2001) W. N. Hohfeld, Fundamental Legal Conceptions, As Applied in Judicial Reasoning and Other Legal Essays (Ashgate, Aldershot 2001).

Hunter, Zaelke & Salzman (2001) D. Hunter, D. Zaelke, & J. Salzman, International Environmental Law and Policy (Foundation Press, New York 2001).

186

chapter 2.1

sustainable development in international law

Jennings & Watts (1993) Sir R. Jennings & Sir A. Watts, Oppenheim’s International Law (9th edn Longman, Harlow 1992).

Jennings (1985) Sir R. Y. Jennings, ‘Universal International Law in a Multicultural World’ in TMC Asser Institute (ed), International Law and The Grotian Heritage: A Commemorative Colloquium on the occasion of the fourth centenary of the birth of Hugo Grotius (TMC Asser Institute, The Hague 1985).

Jennings (1981) R. Jennings, ‘What is International Law and How Do We Tell It When We See It?’ (1981) 37 Schweizerisches Jahrbuch für Internationales Recht.

Jodoin (2005) S. Jodoin, ‘The Principle of Integration’, CISDL Legal Working Papers on Recent Developments in International Law Related to Sustainable Development (CISDL, Montreal 2005) (last accessed Feb 04 2008).

Kiss and Shelton (1994) A. Kiss and D. Shelton, International Environmental Law (2nd edn Transnational Publishers, New York 1994).

Koskenniemi (2006) M. Koskenniemi, ‘What is international law for?’ in M Evans, ed International Law (2nd ed OUP, Oxford 2006).

Krasner (1999) S. D. Krasner, Sovereignty: Organized Hypocrisy (Princeton University Press, Princeton 1999).

Lowe (2007) V. Lowe, International Law (OUP, Oxford 2007).

Lowe (2000) V. Lowe, ‘The Politics of Law-Making: Are the Method and Character of Norm Creation Changing?’ in M Byers (ed), The Role of Law in International Politics: Essays in International Relations and International Law (OUP, Oxford 2000).

Lowe (1999) V. Lowe, ‘Sustainable Development and Unsustainable Arguments’ in A Boyle and D Freestone (eds), International Law and Sustainable Development: Past Achievements and Future Challenges (OUP, Oxford 1999).

Meyers and Muller (1996) G. D. Meyers & S. C. Muller, ‘The Ethical Implications, Political Ramifications and Practical Limitations of Adopting Sustainable Development as National and International Policy’ (1996) 4 Buffalo Environmental LJ 1.

187

sustainable development in international and national law

Mendelson (1999) M. H. Mendelson, ‘The Formation of Customary International Law’ (1999) 272 Recueil des Cours de l’Académie de Droit International 9, 155.

McCoy and McCully (1993) M. McCoy & P. McCully, The Road From Rio: An NGO Action Guide to Environment and Development (Utrecht International Books, Amsterdam 1993).

Pearce and Turner (1990) D.W. Pearce and R.K. Turner, Economics of Natural Resources and the Environment (John Hopkins University Press, Baltimore 1990).

Rajamani (2006) L. Rajamani, Differential Treatment in International Environmental Law (OUP, Oxford 2006).

Robinson (1993) N. A. Robinson, ed., “Agenda 21: Earth’s Action Plan” IUCN Environmental Policy & Law Paper No. 27 (1993).

Ricardo (1965) D. Ricardo, The Principles of Political Economy and Taxation (Dent, London 1965).

Ruggie (1975) J. G. Ruggie, ‘International Responses to Technology: Ideas and Trends’ (1975) 29 Intl Organizations 557.

Ruggie (2004) J. G. Ruggie, ‘Reconstituting the Global Public Domain – Issues, Actors, and Practices’ (2004) 10 Eur J Intl Relations 499.

Ruggie (1983) J. G. Ruggie, ’International Regimes, Transactions and Change: Embedded Liberalism in the Postwar Economic Order’ in Stephen Krasner (ed), International Regimes (Cornell University Press, Ithaca 1983).

Sands (1995) P. Sands, “International Law in the Field of Sustainable Development: Emerging Legal Principles” in W. Lang (ed). Sustainable Development and International Law (Graham Trotman 1995).

Sands (1994) P. Sands, ‘International Law in the Field of Sustainable Development’ (1994) 65 B Ybk Int’l L 303.

Sands (2003) P. Sands, Principles of International Environmental Law (2nd ed CUP, Cambridge 2003).

Schrijver and Weiss (2002) N. Schrijver and F. Weiss, “Editorial Introduction” (2002) 2 Intl Environmental Agreements 105.

188

chapter 2.1

sustainable development in international law

Schrijver and Weiss (2004) N. Schrijver and F. Weiss, International Law and Sustainable Development: Principles and Practice (Martinus Nijhoff, Lieden 2004).

Schrijver (1996) Nico Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (CUP, Cambridge 1996).

Schuurman (1993) F. J. Schuurman, Beyond the Impasse: New Directions in Development Theory (Zed Press, London 1993).

Sen (1999) A. Sen, Development as Freedom (OUP, Oxford 1999).

Shaw (2003) M. Shaw, International Law (5th ed CUP, Cambridge 2003).

Shelton (2006) D. Shelton ‘International Law and Relative Normativity’ in M Evans, ed International Law (2nd ed OUP, Oxford 2006).

Stokke (1987) O. S. Stokke, ‘Regimes as Governance Systems’ in Oran Young (ed), Global Governance: Drawing Insights from the Environmental Experience (MIT Press, Cambridge 1997).

Stone (1994) D. Stone, ’Deciphering Sustainable Development’ (1994) 69 ChicagoKent L Rev 977.

Swanson (2004) Darren Swanson and others, National Strategies for Sustainable Development Challenges, Approaches and Innovations in Strategic and Co-ordinated Action (International Institute for Sustainable Development, Winnipeg 2004).

Trzyna (1995) T. C. Trzyna (ed), A Sustainable World: Defining and Measuring Sustainable Development (California Institute of Public Affairs, Sacramento 1995).

Thirlway (2006) H. Thirlway, ‘The Sources of International Law’ in M Evans, ed, International Law (2nd ed OUP, Oxford 2006).

Toope and Brunnée (2000) S. J. Toope and J. Brunnée, ‘International Law and Constructivism: Elements of an Interactional Theory of International Law’ (2000) 39 Columbia J Transnational L 19.

Toope and Brunnée (2002) J. Brunnée & S. J. Toope, ‘Persuasion and Enforcement: Explaining Compliance with International Law’ (2002) XIII Finnish Ybk Intl L 1.

Villiger (1985) M. E. Villiger, Customary International Law and Treaties (Martinus Nijhoff, Lieden 1985). 189

sustainable development in international and national law

Vogler (2000) J. Vogler, The Global Commons: Environmental and Technological Governance (2nd edn John Wiley & Sons, Chichester 2000).

Wrigley and Souden (1986) E. A. Wrigley & D. Souden, eds, The Works of Thomas Robert Malthus Vol 1: An Essay on the Principle of Population (William Pickering, London 1986).

Young (1989) O. R. Young, International Cooperation: Building Regimes for Natural Resources and The Environment (Cornell University Press, Ithaca 1989).

National legislation • Constitución Política de la República de Colombia, art 80 accessed 6 January 2008; Constitución Política del Perú, art 67, 69 accessed 6 January 2008. • Manitoba: Manitoba Statutes; The Sustainable Development Act; S.M. 1997, c. 61. • Newfoundland and Labrador: Sustainable Development Act, S.N.L. 2007, c. S-34. • Quebec: Sustainable Development Act, R.S.Q. c. D-8.1.1; • South Africa – The National Environmental Management Act 107 of 1998. • Spain – Ley Para el desarrollo sostenible del medio rural, Ley 45/2007, de 13 de diciembre, Preambulo.

International Instruments; Treaties, Conventions • Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, “Protocol of San Salvador” (adopted 17 November 1988, entry into force 16 November 1999) O.A.S. Treaty Series No. 69 (1988). • Consolidated Versions of the Treaty on European Union (signed 17 February 1992) OJ C 321E of 29 December 2006 accessed 18 January 2008. • Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (open for signature 25 June 1998, entry into force on 30 October 2001) 2161 UNTS 447, (1999) 38 ILM 517. • Convention on International Trade in Endangered Species of Wild Fauna and Flora (adopted 3 March 1973, entered into force 1 July 1975) 993 U.N.T.S 243, 12 I.L.M. 1085. • Convention for Cooperation in the Protection and Sustainable Development of the Marine and Coastal Environment of the

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Northeast Pacific (18 February 2002) accessed 1 January 2008. • Convention on Biological Diversity (signed 5 June 1992, entry into force 29 December 1993) 1760 UNTS 14, (1992) 31 ILM 1004 • Cartagena Protocol on Biosafety to the Convention on Biological Diversity (adopted 29 January 2000, entry into force 11 September 2003) (2000) 39 ILM 1027. • EU (EU) Treaty of Amsterdam 1997. • International Treaty on Plant Genetic Resources for Food and Agriculture (opened for signature 3 November 2001, came into force on 29 June 2004) accessed 4 January 2007. • United Nations Framework Convention on Climate Change (adopted 9 May 1992, entry into force 21 March 1994) 1771 UNTS 107, (1992) 31 ILM 849. • United Nations Convention on Biological Diversity (opened for signature 5 June 1992, entered into force 29 December 1) 1760 UNTS 79, 143; 31 ILM 1004. • United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (opened for signature 14 October 1994, entered into force 16 December 1996) 1954 UNTS 3, 33 ILM 1328. • ‘Rio Declaration on Environment and Development (Annex 2)’, Report of the UN Conference on Environment and Development Vol. I (13 June 1992) UN Doc A/CONF.151/26 (Vol I), (1992) 31 ILM 874. • Treaty on the European Union (‘Maastricht Treaty’) 1992. • UNGA Res 4/128 (4 December 1986) UN Doc A/Res/41/128. • United Nations Convention against Corruption (adopted 31 October 2003, entry into force 14 December 2005) (2004) 43 ILM 37, art 62.1. • United Nations Framework Convention on Climate Change (adopted 9 May 1992, entry into force 21 March 1994) 1771 UNTS 107, (1992) 31 ILM 849. • Vienna Convention on the Law of Treaties (singed 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, 8 ILM 679.

Other international instruments, reports, statements, other documents and webpages • 2003  G8 Summit, Science and Technology for Sustainable Development – A G8 Action Plan accessed 6 January 2008. • ‘Agenda 21 (Annex 2)’ in Report of the UN Conference on Environment and Development Vol. I (13 June 1992) UN Doc A/ CONF.151/26 (Vol I). • Agreement Establishing the European Bank for Reconstruction and

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Development (signed 29 May 1990, entered into force 28 March 1991) 1646 UNTS 97, 29 ILM 1077, art 1.viii accessed 18 January 2008. • Armen Baibourtian, ‘Statement by the Deputy Minister of Foreign Affairs of the Republic of Armenia at the 14th Session of the Commission on Sustainable Development’ accesed 18 January 2008. • Asian Development Bank, ‘Environmental Policy’ accessed 18 January 2008. • African Development Bank, ‘Group’s Policy on the Environment’ accessed 18 January 2008. • Basis for Relations between Finland and the Russian Federation (signed 20 January 1992, entered into force 11 July 1992) 1691 UNTS 255. • Colombia’s 2007 Report on the National Development Plan accessed 18 January 2008. • Commission on Sustainable Development, ‘Sustainable Development: The Challenge to International Law. Report of a Consultation held at Windsor 27 to 29 April 1993’ (1993) 2:4 R Eur Community Intl Environmental L r1. • Communication from the Commission A Sustainable Europe COM/2001/0264 for a Better World: A European Union Strategy for Sustainable Development (Commission’s proposal to the Gothenburg European Council), not published in the OJ. • Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions COM/2002/0082 Towards a global partnership for sustainable development, not published in the OJ. • ‘Declaration on the Establishment of a New International Economic Order’ UNGA Res 3201 (S-VI) (1 May 1974) UN Doc A/Res/3201(SVI). • ‘Declaration on the Right to Development’ UNGA Res 41/128 (4 December 1986) UN Doc A/Res/41/128. • ‘Declaration of Panama: Energy for Sustainable Development’ OASGA (adopted 5 June 2007) OAS Doc AG/DEC. 52 (XXXVIIO/07). • Declaration on the Trips Agreement and Public Health (20 November 2001) WT/MIN(01)/DEC/2 .

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• ‘Draft Plan of Implementation of the World Summit on Sustainable Development’ UN Word Summit on Sustainable Development (4 September 2002) UN Doc A/CONF.199/L.3/Add.1-13/Corr.2; see also Ositadinma Anaedu & Lars-Goran Engfeldt ‘Sustainable Development Governance’ accessed 1 January 2008. • ‘Economic Development and the Conservation of Nature’ UNGA Res 1831 (XVII) (18 December 1962) UN Doc A/Res/XVII/1831. • Experts Group on Environmental Law of the World Commission on Environment and Development, Environmental Protection and Sustainable Development (Martinus Nijhoff, London 1987). • Earth Negotiations Bulletin’ accessed 1 January 2008. • ECOSOC website accessed 1 January 2008. • EC  – Measures Concerning Meat and Meat Products (Hormones) (Compliance USA and Canada) (13 February 1998), WTO Doc WT/ DS26/AB/R, WT/DS48/AB/R (Appellate Body Report) [124]. • ‘Establishment of the Commission on Sustainable Development’ UNESC Res 1993/207 (12 February 1993) UN Doc E/1993/207; ‘Institutional arrangements to follow up the United Nations Conference on Environment and Development’ UNGA Res 47/191 (29 January 1993) UN Doc A/RES/47/191 [3]-[5]. • European Council DOC 10917/06 Renewed EU Sustainable Development Strategy. • European Bank for Reconstruction and Development, ‘Environmental Policy’ accessed 18 January 2008 • European Communities – The ACP-EC Partnership Agreement (14 November 2001) WT/MIN(01)/15 . • European Communities – Transitional Regime for the EC Autonomous Tariff Rate Quotas on Imports of Bananas (14 November 2001) WT/MIN(01)/16 . • European Commission, Portal on Sustainable Development accessed 6 January 2008. • EU – Canada Summit (Toledo, 8 May 2002), ‘Joint Summit Statement’ accessed 18 January 2008. • EU-China Summit (Beijing, 5 September 2005), ‘Joint Statement’ accessed 18 January 2008.

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• FAO, Law and Sustainable Development Since Rio: Legal trends in agriculture and natural resource management FAO Legislative Study 73 (FAO, Rome 2002). • Federated States of Micronesia, ‘National Assessment Report (June 2006)’ accessed 18 January 2008. • ‘Follow-up to the World Summit on Sustainable Development and the future role of the Commission on Sustainable Development: the implementation track’ UNESC Rep 2003/2 (21 February 2003) UN Doc E/CN.17/2003/2. • Gabriella Battaini-Dragoni, ‘Statement on behalf of the Council of Europe at the World Summit for Sustainable Development’ accessed 18 January 2008. • ‘Governance for Sustainable Development’ accessed 1 January 2008. • ” The HM Government, Securing the Future: Delivering UK Sustainable Development Strategy accessed 6 January 2008. • ILC, ‘Yearbook of the International Law Commission (1950-II)’ (5 June – 29 July 1950) UN Doc A/CN.4/SER.A/1950 368-72. • International Law Association, Report of the Expert Group on Identification of Principles of International Law for Sustainable Development (ILA, London 1995). • Inter-American Development Bank, ‘Environment and Safeguards Compliance Policy’ accessed 18 January 2008. • The International Institute for Sustainable Development World Summit for Sustainable Development Briefing Papers accessed 1 January 2008. • IISD website accessed 1 January 2008; CISDL website accessed 1 January 2008. • “ILA New Delhi Declaration of Principles of International Law Relating to Sustainable Development” (2002) 2 Intl Environmental Agreements 209. • International Law Association, Report of the Sixty-Second Conference (ILA, Seoul 1987). • ‘Inter-American Democratic Charter’ OASGA (adopted 11 September 2001) OAS Doc AG/RES. 1 (XXVIII-E/01). • Implementation-Related Issues and Concerns (20 November 2001) WT/MIN(01)/17 .

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• International Development Act 2002 (UK); USAID 2007-2012 Strategic Plan Under the 4th Strategic Goal (Promoting Economic Growth and Prosperity) FY 2007-2012 Department of State and USAID Strategic Plan < ttp://www.state.gov/documents/ organization/86291.pdf> accessed 6 January 2008. • ‘Johannesburg Declaration on Sustainable Development and Johannesburg Plan of Implementation’ in Report of the World Summit on Sustainable Development (4 September 2002) UN Doc A/CONF.199/L20. • Julian R. Hunte, ‘Statement on behalf of Santa Lucia at the 57th Session of the General Assembly of the United Nations’ accessed 18 January 2008. • ‘Latin America and the Caribbean Regional Statement to the Ninth Global Civil Society Forum and the Tenth Special Session of the Governing Council/Global Ministerial Environment Forum’ accessed 18 January 2008. • Lexikon  der Nachhaltigkeit accessed 29 December 2007. • OECD  Topics accessed 30 December 2007. • Organization of American States, Department of Sustainable Development accessed 6 January 2008. • ‘Our Common Future’ UN World Commission on Environment and Development Rep (4 August 1987) UN Doc A/42/427. • ‘Permanent Sovereignty over Natural Resources of Developing Countries’ UNGA Res 3016 (XXVII) (18 December 1972) UN Doc A/Res/3016 (XXVII) [1]. • Peru´s State Policies on Sustainable Development and Environment

accessed 6 January 2008. • ‘Process of preparation of the Environmental Perspective to the Year 2000 and Beyond, Meeting no. 102’ UNGA Res. 38/161 (19 December 1983) UN Doc A/RES/38/161. • ‘Programme for the Further Implementation of Agenda 21’ UNGA Res S-19/2 (19 September 1997) UN Doc A/Res/S-19/2. • Procedures for Extensions under Article 27.4 for Certain Developing Country Members (20 November 2001) G/SCM/39 . • ‘Report of the World Commission on Environment and Development’ UNGA Res 42/187 (11 December 1987) UN Doc A/Res/42/187. • Report of the International Conference on Financing for

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Development, UNGA Rep 198/11 (18-22 March 2002) UN Doc A/Conf.198/11; See also UNDESA, ‘Financing for Development’ accessed 31 December 2007. • Resio S. Moses, ‘Statement by the Secretary of External Affairs of the Federated States of Micronesia in the General Debate of the 48th Session of the General Assembly of the United Nations’ accessed 18 January 2008. • Report of the Expert Group Meeting on Identification of Principles of International Law for Sustainable Development (Geneva, Switzerland, 26-28 Sept 1995) Background Paper for the UN CSD New York, 18 April – 3 May 1996 (last accessed Feb 01 2008). • Sheikh Hamad Bin Mohammed al Sharqi,‘Statement on Behalf of the United Arab Emirates at the World Summit on Sustainable Development’ accessed 18 January 2008. • Soren Christensen, ‘Statement by the Secratary General of Nordic Council of Ministers at the World Summit for Sustainable Development’ accessed 18 January 2008. • Special Summit of the Americas, Declaration of Santa Cruz de la Sierra (adopted 1996) accessed 6 January 2008. • ‘Stockholm Declaration’ UN Conference on the Human Environment (16 June 1972) UN Doc A/Conf 48/14/Rev.1, 11 ILM 1461 (1972) • ‘Ten-year review of progress achieved in the implementation of the outcome of the United Nations Conference on Environment and Development’ UNGA Res 55/199 (20 December 2000) UN Doc A/RES/55/199. • UN CSD, ‘National Information Report of the Secretary-General’ UNSEC Rep (5 March 1996) UN Doc E/CN.17/1996/19. • ‘United Nations Reform: Measures and Proposals; and Strengthening of the United Nations System’, UNGA Res 53/239 (5 September 2000) UN Doc A/Res/53/239. • United  Nations Development Programme. Focus Areas accessed 30 December 2007. • United Nations Development Programme, Human Development Reports accessed 30 December 2007. • United  Nations Millennium Development Goals accessed 30 December 2007. • United Nations Millennium Declaration’ UNGA Res 55/2 (8 September 2000) UN Doc A/55/49. • Wang Guangtao, ‘Statement by the Minister of Construction of the People’s Republic of China and Head of the Chinese Delegation at 196

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the High-level Segment of the 13th Session of the Commission on Sustainable Development’ accessed 18 January 2008. • World Commission on Environment and Development, Our Common Future (OUP, Oxford 1987) ix. • The World Bank, ‘World Bank list of economies (July 2007)’ accessed 29 December 2007; Organization for Economic Cooperation and Development, ‘Development Assistance Committee’s List of Recipients of Official Development Assistance’ ; United Nations Development Programme ‘2007/2008 Human Development Index rankings’ accessed 29 December 2007. • World Charter for Nature’ UNGA Res 37/7 (28 October 1982) UN Doc A/Res/37/7, (1983) 22 ILM 455. • World Bank, ‘Bank Procedure 2.11: Country Assistance Strategies’ • World Bank, ‘Operational Policy 4.04 Natural Habitats’ accessed 18 January 2008.

Table of Cases European Court of Justice • Case 29/69 Stauder v. Ulm [1969] ECR 419. • Case 4/73 Nold [1974] ECR 491. • Case C-36/98, Spain v. Council [2001] ECR I-779. • Case C-277/02, EU-Wood-Trading GmbH v. Sonderabfall-ManagementGesellschaft Rheinland-Pfalz mbH. [2004] ECR, I-11957. • Case C-403/05, European Parliament v. Commission ECJ Judgment of 23 October 2007, not yet in the ECR.

Interamerican Court of Human Rights • Inter-American Court of Human Rights Case of the Sawhoyamaxa Community (Paraguay) (2006). • Inter-American Court of Human Rights Case of the Saramaka Peoples (Suriname) (2007).

International Court of Justice • Asylum Case (Colombia / Peru) (Judgment) General List No. 7, [1950] ICJ 266. • Case  Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Judgement) General List No 70 [1986] ICJ 14, 25 ILM 1023. • Case  Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgement,Separate Opinion of Vice President Weeramantry) General List No 92 [1997] ICJ 7, (1998) 37 ILM 162. 197

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• Case  Concerning Pulp Mills on the River Uruguay (Argentina V. Uruguay) (Request for the Indication of Provisional Measures: Order of 13 July 2006) General List No 135, (2006) 45 ILM 1025. • Case  Concerning the Territorial Dispute (Libyan Arab Jamahiriya v.Chad) (Judgment) General List No 83 [1994] ICJ 6, (1994) 33 ILM 571. • Case  Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia) (Judgment) General List No 102 [2002] ICJ 625. • Case  concerning East Timor (Portugal v. Australia) (Judgment, Dissenting Opinion of Judge Weeramantry) General List No 84, [1995] ICJ 90, 34 ILM 1581. • Case  concerning the Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v. Iceland) (Merits, Dissenting Opinion of Judge Petrel ) General List No 55, [1974] ICJ 3. • Fisheries  Case (United Kingdom v. Norway) (Judgement) General List No 5 [1951] ICJ 131. • Kasikili/Sedudu  Island (Botswana/Namibia) (Judgement) General List No 99 [1999] ICJ 1045, (2000) 39 ILM 310. • North  Sea Continental Shelf (Federal Republic of Germany v. Denmark; Federal Republic of Germany v.Netherlands) (Judgement) General List No 51 & 52 [1969] ICJ 3, 8 ILM 340. • Nuclear  Tests Case (New Zealand v. France), Dissenting opinion by Judge Weeramantry) General List No 97 [1995] ICJ 288. • Certain  Phosphate Lands in Nauru (Nauru v. Australia) (Preliminary Objections: Judgment) General List No 80 [1992] ICJ 240, 32 ILM 1471 • Certain  Phosphate Lands in Nauru (Nauru v. Australia) (Memorial of the Republic of Nauru Volume 1) [390] accessed 18 January 2008. • Case  Concerning the Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium v. Spain) (Second Phase, Separate Opinion of Judge Jessup) General List No 50, [1970] ICJ 3. • Case  Concerning Rights of Nationals of the United States of America in Morocco (France/United States of America) (Merits) General List No 11, [1952] ICJ 176, p. 200.

National Case Law • India: Charan Lal Sahu v. Union of India AIR 1990 SC 1480. • India: Koolwal v. Rajasthan AIR 1998, Raj.2. • India: Vellore Citizens Welfare Forum v. Union of India [1996] 5 SCC 647 (Supreme Court, India). • Australia: Leatch v. National Parks and Wildlife Service and Shoalhaven City Council, 81 LGERA 270 (1993) (NSW Land and Environment Court, Australia). 198

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• Sri Lanka: Balankulama v. The Secretary, Ministry of Industrial Development, SAER, Vol 7(2) June 2000 (Supreme Court, Sri Lanka – Supreme Court of the Democratic Socialist Republic of Sri Lanka). • Phillipines: Minors Oposa v. Secretary of the Department of Environment and Natural Resources (DENR), 33 I.L.M. 173 (1994) (Philippines). • Nepal: Rajendra Parajuli and Others v. Shree Distillery Pvt. Ltd. & Others, the Supreme Court of Nepal (Writ No. 3259, 1996).

International arbitral awards • Arbitration Regarding the Iron Rhine (Ijzeren Rijn) Railway (Belgium v. Netherlands), Arbitral Award of 24 May 2005, available at accessed 29 December 2007. • Gentini case (Italy v. Venezuela) (1903) 10 RIAA 551.

Others • African Commission on Human and Peoples’ Rights Case of the Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria (2002) 96 AJIL 937, 47 J African L 126 [52].

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Between Process and Substance Sustainable Development in the Jurisprudence of International Courts and Tribunals Alan Boyle

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between process and substance

1 Introduction

The Brundtland Report characterised sustainable development as a process that ‘meets the needs of the present without compromising the ability of future generations to meet their own needs.’ Not until the UN Conference on Environment and Development met at Rio in 1992, however, did sustainable development secure general support as the leading concept of international environmental policy. The notion of sustainable development is inherently complex and its implementation obliges governments to think in somewhat different terms from those to which they have been accustomed. Social, political and economic choices abound: what weight should be given to natural resource exploitation over nature protection, to industrial development over the air and water quality, to land-use development over conservation of forests and wetlands, to energy consumption over the risks of climate change, and so on. These choices may result in wide diversities of policy and interpretation, as different governments and international organisations pursue their own priorities and make their own value judgments, moderated only to some extent by international agreements on such matters as climate change and conservation of biological diversity. Twenty years on from the Brundtland Report we are still no nearer to an internationally agreed understanding of what constitutes sustainable development in detail. There is no explicit proclamation of a ‘right to sustainable development’ in the 1992 Rio Declaration on Environment and Development – nor is there a right to its mirror image, a decent environment. While Principle 3 endorses the ‘right to development’, this amorphous concept embraces not just the promotion of economic development by states but also the social and cultural aspects of human development found in the 1966 UN Covenant on Economic, Social and Cultural Rights.  Similarly, the 1986 UN Declaration on the Right to Development places on states a duty ‘to formulate appropriate national development policies that aim at the constant improvement of the well-being of the entire population….’ The Millennium Development Goals adopted by the UN General Assembly reiterate and expand these commitments. Acknowledging that the environment is also part of this equation, Rio Principle (Principle 3) and the1993 Vienna Declaration on Human Rights (Para.11) *

Alan Boyle is Professor of Public International Law, University of Edinburgh; Barrister, Essex Court Chambers, London.



WCED (1987).



See Report of the UN Conference on Environment and Development, UN Doc. A/CONF. 151/26/REV. 1, Vols. I-III (1992); reproduced with preparatory papers in Robinson (1992).



See Boyle (2007).

 

See generally Andreassen and Marks (eds) (2006).

Declaration on the Right to Development, UNGA Res. 41/128 (1986), Article 2(3).



The Millennium Development Goals are set out in UNGA Res. 55/2, 8 September 2000.

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emphasise that ‘The right to development should be fulfilled so as to meet equitably the developmental and environmental needs of present and future generations. ’ The Rio Declaration also affirms both the sovereign right of states to exploit their own resources ‘pursuant to their own environmental and developmental policies’ and their responsibility ‘to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction’ (Principle 2). Principle 2 is neither an absolute prohibition on transboundary environmental damage, nor does it confer on states absolute freedom to exploit natural resources. Principle 4 spells out the obvious point that sustainable development requires integration or accommodation of economic development and environmental protection. As a concept, however, sustainable development owes as much to human rights law as to the sovereignty of states. Article 1 of the 1966 UN Covenants on Civil and Political Rights and Economic, Social and Cultural Rights proclaims the right of all peoples to pursue economic development, and to dispose freely of their natural wealth and resources, but at the same time regional human rights treaties in Africa and Latin America also recognise a right to some degree of environmental protection, and so does the case law of the ECHR. The essential point of each of these examples is that, while recognising that the right to pursue economic development is an attribute of a state’s sovereignty over its own natural resources and territory, it cannot lawfully be exercised without regard for the detrimental impact on human rights or the environment of other states or areas beyond national jurisdiction. Equally, as we will see later in this chapter, neither environmental protection nor human rights necessarily trump the right to economic development. Such potential conflicts have not led international courts to employ the concept of ius cogens or to give human rights, environmental protection or economic development automatic priority. Instead, the case law has concentrated on questions of balance, necessity, and the degree of interference. It shows that few rights are ever absolute or unqualified. In the Gabcikovo-Nagymaros Case the International Court referred for the first time to ‘this need to reconcile economic development with protection of the environment [which] is aptly expressed in the concept of sustainable development’. It is in this sense that we can talk about a ‘right to sustainable development.’10 The Pulp Mills Case,11 currently awaiting a hearing on the merits in the ICJ, provides a clear example of the place occupied by sustainable development in 

1996 ILC Report, Working Group on International Liability, GAOR A/51/10, Annex 1, at 264-5; Lefeber (1996) 23-25.



See below.



ICJ Reports (1997), 7, at para. 140; see both Lowe and Higgins (1999), Chs. 2 and 5.

10

For a fuller discussion of the legal status of sustainable development see in particular Lowe (1999) Ch.2; Magraw and Hawke (2007), Ch. 26.

11

See below.

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the caselaw of international courts and tribunals. It appears to pose a direct conflict between the right to pursue economic development, environmental protection and human rights. On the one hand Uruguay wishes to encourage foreign investment which will provide jobs, contribute tax revenue, and facilitate economic revival in a relatively depressed area. On the other, Argentina argues that construction and operation of a wood pulp mill will pollute the River Uruguay, damage its ecosystem, harm tourism and threaten the health of the neighbouring Argentine population. It argues that the development cannot proceed unless shown to be harmless, in accordance with the strongest version of the precautionary principle, and unless it has been approved by the River Uruguay Commission, in accordance with Argentina’s interpretation of the Statute of the River Uruguay. Uruguay rejects these arguments as unsupported by international law or the terms of the 1975 Statute, and relies on the right to sustainable development in support of its own position. At the same time, Uruguay accepts that it must regulate and control a potentially harmful activity to the highest international standards, after conducting a thorough EIA, with public consultation. What it cannot accept is Argentina’s claim to a veto over its economic development. Argentine environmental groups have also initiated proceedings in the IACHR against Uruguay for allegedly violating their right to life and private life. In response Uruguay points to the provision for public participation in the decision-making process and the right to judicial review, both of which are open to Argentine citizens on a non-discriminatory basis. Both sides remain in fundamental dispute about the likely environmental consequences of the plant: hardly perceptible on one view, catastrophic on the other. Whatever the merits of this case we can see here how human rights, environmental protection and sustainable development can come into conflict. This paper will consider how far international courts have used sustainable development as a principle or concept when adjudicating cases. Why is this important? Because it tells us something: • about the nature of the concept of sustainable development and its legal status; • about how it can be used in interstate disputes and in human rights cases; • about the impact of the Brundtland Commission and the Rio Declaration on the development and application of international law; • about the relationship between environment, development and human rights in international law. The specific focus will be economic development and its relationship to environmental protection and human rights law. The right to development’s human development aspects will not be discussed in detail. Nor is it necessary to explore what is meant by sustainable development and it is not suggested that courts have given us an answer to that question.

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2 Is There a Justiciable ‘Right’ to Sustainable Development?

Is there a difference between the right to development and a right to sustainable development? The answer is not obvious, but for the purposes of this paper I am going to suggest an essentially pragmatic distinction between (a) the right to development endorsed by the UN in 1986 and again in the Vienna Declaration on Human Rights of 1993 and (b) the somewhat narrower focus on sustainable economic development articulated in the Rio Declaration and addressed by international courts in several cases. But clearly the two overlap, and to some extent the difference is largely one of perspective. What we also find is a certain tension between differing views of the role of courts in this context. One view ascribes to them the role of policing the procedural contours of sustainable development. From this perspective courts can review the way decisions about development are made – EIA, public participation, inter-state consultation and so on – but they do not review the sustainability of the development on its merits. An alternative view partially discards this caution, and allows courts to review the sustainability of economic development by reference to its long-term detriment to human rights, not just the right to life, private life or property, but including economic, social and cultural rights. A third view, the most far-reaching, would permit an international court to review the substantive sustainability of economic development by reference to a variety of factors, of which the impact on human rights is only one. No international court has so far endorsed this approach, but it has been adopted by the ILA Committee on Sustainable Development.12



3 Sustainable Development in the Case Law



3.1 The International Court of Justice (ICJ)

Fundamental to the International Court’s case law is the balancing of interests that must often take place when environmental matters are involved. In the Case Concerning the Gabcikovo Nagymaros Dam, the International Court referred for the first time to ‘this need to reconcile economic development with protection of the environment [which] is aptly expressed in the concept of sustainable development’.13 In that decision, while not questioning whether the project was sustainable, the ICJ did require the parties in the interests of sustainable development to ‘look afresh’ at the environmental consequences and to carry out monitoring and abatement measures to contemporary standards set by international law. 12 13

See below, section 4.

(1997) ICJ Reports 7, at para. 140; see Higgins (1999), Ch. 5.

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An interpretation which makes the process of decision-making the key legal element in sustainable development, rather than the nature of the development, is implicitly supported by the Gabcikovo-Nagymaros Case. Specifically, if states do not carry out EIAs, or encourage public participation, or integrate development and environmental considerations in their decision-making, or take account of the needs of intra- and inter-generational equity, they will have failed too implement the main elements employed by the Rio Declaration and other international instruments for the purpose of facilitating sustainable development. However, given the social and economic value judgments involved in deciding what is sustainable, and the necessity of weighing conflicting factors, of which environmental protection is only one, states inevitably retain substantial discretion in interpreting and giving effect to the principle, unless specific international action has been agreed. On this view it remains difficult to see an international court reviewing national action and concluding that it falls short of a standard of ‘sustainable development’. The International Court of Justice did not do so in the Gabcikovo-Nagymaros Case, preferring instead to address more readily justiciable questions such as the equitable allocation of waterflow or the applicability of international environmental standards in the operation of the hydroelectric system.14 In consequence it has proved relatively easy for the ICJ to accommodate environmental protection and economic development. The ICJ’s decision in the Pulp Mills Provisional Measures Case (No.1) illustrates the essentially relative character of these competing interests.15 As the Court held there: ‘Whereas the present case highlights the importance of the need to ensure environmental protection of shared natural resources while allowing for sustainable economic development; whereas it is in particular necessary to bear in mind the reliance of the Parties on the quality of the water of the River Uruguay for their livelihood and economic development; whereas from this point of view account must be taken of the need to safeguard the continued conservation of the river environment and the rights of economic development of the riparian States…’16 On this approach, provided Uruguay can show that it has followed all the requirements of international law with respect to environmental protection, no international court should be tempted to conclude that building pulp mills in an otherwise unspoiled environment is unsustainable development. The interesting question is whether a human rights court would or should take the same approach.



3.2 The European Court of Human Rights (ECHR)

In cases before the European Court of Human Rights states have similarly been allowed a wide margin of appreciation to pursue economic 14 15

A.E.Boyle, The Gabcikovo-Nagymaros Case: New Law in Old Bottles (1997) 8 YbIEL 13.

Pulp Mills Case (Provisional Measures)(Argentina v Uruguay) (2006) ICJ Reports, 13 July 2006.

16

Ibid, at para. 80. See also Case Concerning the Gabčíkovo-Nagymaros Dam (1997) ICJ Reports 7, para. 140.

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objectives provided they regulate environmental nuisances and enforce their own law,17 and otherwise maintain a fair balance between the benefits for the community as a whole and the protection of the individual’s right to private and family life or protection of possessions and property.18 In the latter context economic development may be seen as unsustainable if it fails adequately to respect human rights, but the case will have to be a fairly extreme one. Thus, in Hatton v. United Kingdom,19 additional night flights at Heathrow Airport did not violate the right to private and family life because adequate measures had been taken to sound-proof homes, to regulate and limit the frequency of flights and to assess the environmental impact. Moreover there was no evidence of any fall in the value of the homes concerned, and the applicants could have moved elsewhere had they chosen to do so. In the court’s view the state would have been be failing in its duty to those affected if it did not regulate or mitigate environmental nuisances or environmental risk caused by such development projects,20 but it is required to do so only to the extent necessary to protect life, health, enjoyment of property and family life from disproportionate interference. The United Kingdom had acted lawfully, had done its best to mitigate the impact on the private life of those affected and, in the view of the Court, it had maintained a fair balance between the economic benefit of the community as a whole and the rights of individuals who lived near the airport. Had the applicants demonstrated serious health effects or a risk to life the outcome might have been different: where the right to life is engaged the degree of balancing permitted will inevitably be much less. In Hatton the 1st instance chamber and the dissenting judges in the Grand Chamber decided in favour of the applicants on the basis that the UK had not demonstrated the value of night flights, and had neither adequately assessed the noise impact nor mitigated its effects sufficiently. The noise nuisance thus constituted, in their view, a violation of the right to private life. Clearly there can be different views on what constitutes a fair balance between economic interests and individual rights, and such a judgment is inevitably subjective. However, the Grand Chamber’s approach suggests a rather greater deference towards government policy than at 1st instance, with inevitable consequences for environmental protection. The important point in the present context is that the Grand Chamber leaves little room for the Court to substitute its own view of the extent to which the environment should be protected from economic development. On 17

ECHR 9 December 1994 Lopez Ostra v. Spain 20 EHRR [1995] 277; ECHR 19 February 1998 Guerra v. Italy 26 EHRR 357 [1998] 357; ECHR 9 June 2005 Fadeyeva v. Russia EHRR[2005] 376; ECHR 10 November 2004 Taskin v. Turkey 42 EHRR [2006] 50.

18

Fredin v. Sweden (1991) ECHR Sers. A/192; ECHR 8 July 2003 Hatton v. UK [2003] 37 EHRR 611 (Grand Chamber).

19

Ibid.

20

See also ECHR 30 November 2004 Öneryildiz v. Turkey, 48939/99, [2004] ECHR-XII, para. 107; Taskin, paras. 116-7.

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this basis, decisions about where the public interest lies are for politicians, not for the court, save in the most extreme cases. At the same time, the balance of interests to be maintained in such cases is not only a substantive one, but also has important procedural dimensions. Thus in Taskin v. Turkey, a case about the licensing of a mine, the Court held that ‘whilst Article 8 contains no explicit procedural requirements, the decisionmaking process leading to measures of interference must be fair and such as to afford due respect to the interests of the individual as safeguarded by Article 8.’21 This passage and the Court’s emphasis on taking into account the views of affected individuals strongly suggests that, at least for some decisions, participation in the decision-making process by those affected will be essential for compliance with Article 8 of the European Convention on Human Rights, as it will also for compliance with Article 6 of the Aarhus Convention.22 Similarly, the right to ‘meaningful consultation’ is upheld by the Inter American Commission in the Maya Indigenous Community of Toledo Case.23 Nevertheless, the most significant feature of Taskin is that it envisages an informed process. The Court put the matter like this: ‘Where a State must determine complex issues of environmental and economic policy, the decisionmaking process must firstly involve appropriate investigations and studies in order to allow them to predict and evaluate in advance the effects of those activities which might damage the environment and infringe individuals’ rights and to enable them to strike a fair balance between the various conflicting interests at stake …..’24 The words environmental impact assessment are not used, but in many cases that is exactly what will be necessary to give effect to the evaluation process envisaged here. This is a far-reaching conclusion, but once again, it reflects the Aarhus Convention. Article 6 of the Aarhus Convention also does not specify what kind of procedure is required in order to facilitate public participation in environmental decision-making, but it has detailed provisions on the information to be made available, including: 21

Taskin, para. 118.

22

Participatory rights under Article 6 of the Aarhus Convention are available only to ‘the public concerned’, defined in Article 2(5) as ‘the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest.’

23

At paras. 154-5. The Commission relies inter alia on the right to life and the right to private life, in addition to finding consultation a ‘fundamental component of the State’s obligations in giving effect to the communal property right of the Maya people in the lands that they have traditionally used and occupied.’ See also ILO Convention No. 169 Concerning Indigenous and Tribal Peoples and the UNHRC decision in Ilmari Lansman et al. v. Finland (1996) ICCPR Communication No. 511/1992, para. 9.5, which stresses the need ‘to ensure the effective participation of members of minority communities in decisions which affect them.’

24

Taskin, para. 119.

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a) a description of the site and the physical and technical characteristics of the proposed activity, including an estimate of the expected residues and emissions; b) a description of the significant effects of the proposed activity on the environment; c) a description of the measures envisaged to prevent and/or reduce the effects, including emissions; d) a non-technical summary of the above; e) an outline of the main alternatives studied by the applicant.25 As a brief comparison with Annex II of the 1991 Espoo Convention on EIA shows, these are all matters normally included in an EIA.26 Taskin goes far to translate into European human rights law the procedural requirements elaborated in European environmental treaty law, despite the fact that Turkey is not a party to the Aarhus Convention. Moreover, the European precedents are clearly relevant to the interpretation of comparable rights in other conventions, and Principle 10 of the Rio Declaration would also sustain reading into them the same procedural requirements. Judge Higgins has drawn attention to the way human rights courts ‘work consciously to co-ordinate their approaches.’27 There is certainly evidence of convergence in the case-law and a cross-fertilisation of ideas between the different human rights systems,28 so Taskin v Turkey will most probably become a significant case not merely within European human rights law but globally. Nevertheless, as Hayward points out, ‘Procedural rights alone do little to counterbalance the prevailing presumptions in favour of development and economic interests.’29 Nor do they undermine the proposition that courts are inherently reluctant to review the substantive sustainability of economic development. However, this may not always be so, as the next case will show.



3.3 The African Commission on Human and Peoples Rights (ACHPR)

In the Ogoniland case, the complainants alleged that oil reserves in Ogoniland had been exploited with no regard for the health or environment of the local communities, that toxic wastes had been discharged into 25

Aarhus Convention, Article 6(6).

26

Annex II of the Espoo Convention additionally includes an indication of predictive methods, underlying assumptions, relevant data, gaps in knowledge and uncertainties, as well as an outline of monitoring plans.

27

Higgins (2006) 791, 798.

28

See also the separate opinion of Judge Trindade in Case of Caesar v. Trinidad and Tobago (2005) IACHR Sers. C, No.123, paras 6-12.

29

Hayward (2005) 180.

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the environment and local waterways, and that there had been many avoidable oil spills near villages. As a result “The contamination of water, soil and air has had serious short and long-term health impacts, including skin infections, gastrointestinal and respiratory ailments, and increased risk of cancers, and neurological and reproductive problems.” 30 The African Charter on Human and Peoples Rights protects both the right of peoples to the ‘best attainable standard of health,’(Art.16) and the right to ‘a general satisfactory environment suitable for their development.’(Art.24). In Ogoniland the African Commission on Human and Peoples Rights held, inter alia, that the latter provision imposes an obligation on the State to take reasonable measures ‘to prevent pollution and ecological degradation, to promote conservation, and to secure ecologically sustainable development and use of natural resources.’31 It concluded that ‘an environment degraded by pollution and defaced by the destruction of all beauty and variety is as contrary to satisfactory living conditions and development as the breakdown of the fundamental ecologic equilibria is harmful to physical and moral health’.32 The Commission sets out specific actions required of States in fulfilment of Articles 16 and 24, including ‘ordering or at least permitting independent scientific monitoring of threatened environments, requiring and publicising environmental and social impact studies prior to any major industrial development, undertaking appropriate monitoring and providing information to those communities exposed to hazardous materials and activities and providing meaningful opportunities for individuals to be heard and to participate in the development decisions affecting their communities.’33 Like the Taskin decision of the ECHR, the responsibilities outlined here focus on procedural rights, and reflect Principle 10 of the Rio Declaration. However, the Ogoniland decision goes further than Taskin in several respects. It is unique in applying for the first time the right of peoples to dispose freely of their own natural resources (Art.21).34 Noting that the activities of the oil industry and the government had devastatingly affected the well-being of the local population, the Commission concluded that ‘The destructive and selfish role-played by oil development in Ogoniland, closely tied with repressive tactics of the Nigerian Government, and the lack of material benefits accruing to the local population35, may well be said to constitute a violation of Article 21.’ 30

The Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria, ACHPR, Communication 155/96 (2002).

31

Paras. 52-53.

32 33

Para. 51. See Ebeku (2003) 149 at 163; Nwobike (2005) 129 at 139.

Para. 54.

34

Article 1 of the 1966 ICCPR is not justiciable by the HRC under the procedure for individual complaints laid down in the Optional Protocol: see Lubicon Lake Band v. Canada (1990) ICCPR Communication No. 167/1984, para. 32.1.

35

See report by the World Bank Industry and Energy Operations Division, West Central Africa Department, Defining an Environmental Development Strategy for the Niger Delta, vol. 1 – para.B (1.6-1.7) (1995)

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Here we can see a rare example of an international tribunal taking a critical view on the merits of economic development. The Commission’s final order is also the most far-reaching of any environmental rights case. It calls for a ‘comprehensive cleanup of lands and rivers damaged by oil operations,’ the preparation of environmental and social impact assessments, and provision of information on health and environmental risks and ‘meaningful access to regulatory and decision-making bodies.’36 As Shelton observes, ‘The result offers a blueprint for merging environmental protection, economic development, and guarantees of human rights.’37 Ogoniland is a remarkable decision which goes further than any previous human rights case in the substantive environmental obligations it places on states. It is unique in applying for the first time the right of peoples to dispose freely of their own natural resources.38 When combined with the evidence of severe harm to the lives, health, property and well-being of the local population, the decision can be seen as a challenge to the sustainability of oil extraction in Ogoniland. The most obvious characteristics of unsustainable development include material harm and a lack of material benefits for those most adversely affected. In that sense it is not surprising that the African Commission does not see this case simply as a failure to maintain a fair balance between public good and private rights. This decision gives some indication of how environmental rights could be used to promote sustainable development, but its explicit basis in Articles 21 and 24 has to be remembered. No other treaty contains anything directly comparable. Nevertheless, while we should not lose sight of the fact that that the Ogoniland decision is by any measure an extreme case, its basic approach to sustainable development is reflected in the case law of other human rights institutions.



3.4 The Inter American Commission and Court of Human Rights (IACHR)

In somewhat similar circumstances, the Inter American Commission and Court of Human Rights have interpreted the rights to life, health and property to afford protection from environmental destruction and unsustainable development and they go some way towards achieving the same at pp. 2-3 36 37

Para. 69.

Shelton (2002) 937, 942.

38

Article 21. Although Article 1(2) of the 1966 ICCPR also recognises , the right of peoples to ‘freely dispose of their natural wealth and resources…….’it is not justiciable by the HRC under the procedure for individual complaints laid down in the Optional Protocol: see Lubicon Lake Band v. Canada (1990) ICCPR Communication No. 167/1984, para. 32.1. Violation of the right to permanent sovereignty over natural resources was also pleaded in the East Timor Case (1995) ICJ Reports 90, at 94, but the case was held to be inadmissible.

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outcome as Article 24 of the African Convention.39 In the Maya Indigenous Community of Toledo Case, 40 the IACHR accepted that logging concessions threatened long-term and irreversible damage to the natural environment on which the petitioners’ system of subsistence agriculture depended. Loss of topsoil would prevent forest regeneration, damaging water supplies, and diminishing the availability of wildlife and plants. Citing the Ogoniland case, the IACHR concluded that there had been violations of the petitioners’ right to property in their ancestral land. Its final order required Belize to repair the environmental damage and to take measures to demarcate and protect their land in consultation with the community. Maya Indigenous Community is not so extreme a case as Ogoniland, but it once again reflects a view that the development in question is unsustainable when seen from the perspective of its adverse impact on the rights of the petitioners. Although the absence of meaningful consultation is an important element of the case, the decision does not treat sustainability in procedural terms alone, as we can see from its references to long-term and irreversible effects on agriculture. The Commission’s decision notes the importance of economic development but reiterates that ‘development activities must be accompanied by appropriate and effective measures to ensure that they do not proceed at the expense of the fundamental rights of persons who may be particularly and negatively affected, including indigenous communities and the environment upon which they depend for their physical, cultural and spiritual well-being.’41 Unlike the Ogoniland case, however, these IACHR decisions draw heavily on the particular rights of indigenous peoples to their traditional lands, and it is unclear whether they have more general relevance outside that context.



3.5 The United Nations Human Rights Committee (UNHRC)

The reasoning of the Ogoniland and Maya cases are to limited extent reflected in the UNHRC’s decision in Ilmari Lansman v. Finland. 42 There the Committee held that ‘A State may understandably wish to encourage development or allow economic activity by enterprises. The scope of its freedom to do 39

See Mayagna (Sumo) Awas Tingni Community v Nicaragua (2001), Inter-AM Ser. C, No. 79; Maya indigenous community of the Toledo District v. Belize, Case 12.053, Report No. 40/04, Inter-Am. C.H.R., OEA/ Ser.L/V/II.122 Doc. 5 rev. 1 at 727 (2004); Yanomani Indians v. Brazil, Decision 7615, Inter-Am.C.H.R., Inter-American YB on Hum.Rts. 264 (1985). Several other claims have been held admissible: Yakye Axa indigenous community of the Enxet-Lengua people v. Paraguay, Case 12.313, Report No. 2/02, Inter-Am. C.H.R., Doc. 5 rev. 1 at 387 (2002); The Kichwa Peoples of the Sarayaku community and its members v. Ecuador, Case 167/03, Report No. 62/04, Inter-Am. C.H.R., OEA/Ser.L/V/II.122 Doc. 5 rev. 1 at 308 (2004).

40 41

Loc. cit., previous note.

Para. 150.

42

(1996) ICCPR Communication No. 511/1992.

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so is not to be assessed by reference to a margin of appreciation, but by reference to the obligations it has undertaken in article 27. Article 27 requires that a member of a minority shall not be denied his right to enjoy his culture. Thus, measures whose impact amount to a denial of the right will not be compatible with the obligations under article 27. However, measures that have a certain limited impact on the way of life of persons belonging to a minority will not necessarily amount to a denial of the right under article 27.’43 Although the Committee concluded that Finland had taken adequate measures to minimise the impact of quarrying on the petitioner’s reindeer herding, 44 it seems once again that if there had been long-term adverse impacts on the sustainability of their environment and traditional livelihood, the outcome would have been comparable to the other two cases.



4 Conclusions

That these are all cases about sustainable economic development is clear. However, they cannot all be explained purely in procedural terms: Ogoniland, Maya Indigenous Community and Ilmari Lansman do address the sustainability of economic development in substantive terms. They are to that extent unlike Gabcikovo, Hatton or Taskin. Of course, that may simply tell us that the facts are different, as indeed they are. What it also tells us most of all is that any challenge to the sustainability of economic development before an international tribunal will be most effective if focused on the long-term impact on the environment on which those most affected depend for their livelihood. From that perspective Heathrow Airport or the Gabcikovo-Nagymaros dam are not examples of unsustainable development. But in a suitably extreme case, such as Ogoniland, judicial review based on unsustainable economic impact will be possible. It does not particularly matter whether the argument is made in inter-state proceedings about sustainable development or in a human rights case, but in either context the core of the case must be the adverse impact on the environment of those most affected. Should we nevertheless go further and argue, as the ILA Committee on Sustainable Development has suggested, 45 that an international court can and should review economic development which is unsustainable, even if the argument cannot be framed in human rights terms? Do we want courts deciding such cases? Assuming a definition of sustainable development is possible, does it follow that international courts are the best bodies to perform this task, rather than national political institutions? Should we let judges determine whether to preserve the habitat of the lesser-spotted woodpecker or the Barton Springs Sala43

Para. 9.4

44 45

Para. 9.7.

ILA, 72nd Conference Report (2006), 495 & 499.

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mander instead of extending an airport or a shopping mall? Exactly the same questions can be asked about claims that international law should recognise a right to a decent environment. The same answer may well serve both questions. Here the distinction between Hatton and Taskin is important. The first shows understandable reluctance to allow the European Court to become a forum for appeals against the policy judgments of governments, provided they do not disproportionately affect individual rights. The second shows a far greater willingness to insist that decisions are made by public authorities following proper procedures involving adequate information, public participation and access to judicial review. This is a tenable, and democratically defensible distinction, especially resonant in Western Europe and North America. One would expect most judges of the European Court of Human Rights to be comfortable with it. Whether it is equally defensible in other societies elsewhere in the world is perhaps more questionable. The willingness of Indian and African judges in environmental cases to go further than any European or American court is evidence of a different attitude to the relationship of government and the judiciary that is not likely to be replicated in Strasbourg, but which reflects the particular circumstances of Indian democracy or the African Charter. 46 Despite its evolutionary character, however, human rights law still falls short of guaranteeing a right to a decent or satisfactory environment if that concept is understood in broader, essentially qualitative, terms unrelated to impacts on specific humans. It remains true, as the European Court re-iterated in Kyrtatos, that ‘neither Article 8 nor any of the other articles of the Convention are specifically designed to provide general protection of the environment as such….’47 This case involved the illegal draining of a wetland. The European Court could find no violation of their right to private life or enjoyment of property arising out of the destruction of the area in question. Although they lived nearby, the applicants’ rights were not affected. They were not entitled to live in any particular environment, or to have the surrounding environment indefinitely preserved. The Court’s conclusion in Kyrtatos points to a larger issue which goes to the heart of the problem: human rights protection benefits only the victims of a violation of convention rights. If the individual applicant’s health, private life, property or civil rights are not sufficiently affected by environmental loss, then he or she has no standing to proceed. There is, as Judge Loucaides has observed, no actio popularis under the European convention. 48 The Inter American Commission on Human Rights has taken a similar view, rejecting as inadmissible a claim on behalf of all the citizens of Panama to protect a nature reserve from development. 49 In a comparable case concerning objections to the growing 46 47

But even in India the activist role of judges has been challenged: see Razzaque (2007)

ECHR 22 May 2003 Kyrtatos v. Greece [2005] 40 EHRR 16, para. 52.

48

Loucaides (2004) 249.

49

Metropolitan Nature Reserve v. Panama, Case 11.533, Report No. 88/03, Inter-Am. C.H.R., OEA/Ser. L/V/II.118 Doc. 70 rev. 2 at 524 (2003), para. 34.

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of genetically modified crops the UN Human Rights Committee likewise held that ‘no person may, in theoretical terms and by actio popularis, object to a law or practice which he holds to be at variance with the Covenant.’50 On this view, individuals have a necessarily limited standing to challenge unsustainable development or environmental destruction. Even if judges are not the right people to decide on what constitutes sustainable development or a decent environment, there remains an important role for international courts in policing the processes of decision-making. As the internationalisation of the domestic environment becomes more extensive, through policies of sustainable development, protection of biodiversity, and mitigation of climate change, the role of human rights law in democratising national decision-making processes and making them more rational, open and legitimate will become more and not less significant. Public participation, as foreseen in UNCED Agenda 21, is thus a central element in sustainable development. The strong provisions on public and NGO participation in strategic environmental assessment adopted by European states in the 2003 Protocol on Strategic Environmental Assessment are a significant endorsement of this philosophy. They take the notion of public interest participation further even than the 1998 Aarhus Convention. This approach is entirely appropriate if what constitutes sustainable development and a decent environment is essentially a matter for each society to determine according to its own values and choices, albeit within the confines of internationally agreed rules and policies. The claims of humanity, both now and in future generations, to live in a decent environment capable of sustaining life of acceptable quality, need little justification. Nor, when viewed against the need for biological diversity, unity of ecosystems, and the preservation of options implicit in sustainable development, do the claims of animals and nature to international protection appear controversial. The fundamental difficulty lies in reconciling these claims with economic development and other competing objectives, and, for the lawyer, in identifying the most appropriate means for doing so. For this purpose the role of international human rights courts is important but limited to the protection of individual civil and political rights and ill-suited to broader forms of public interest litigation. Larger questions of economic and social welfare have been and should remain within the confines of the more political supervisory processes envisaged by the ESCR Covenant and the European Social Charter. At the substantive level a ‘right’ to a decent or satisfactory environment can best be envisaged within that context, but at present it remains largely absent from the relevant global and regional treaties. This is an omission which should be addressed if environmental considerations are to receive the weight they deserve in the balance of economic, social and cultural rights.

50

Brun v. France (2006) ICCPR Communication No. 1453/2006, para.6.3.

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Bibliography Andreassen and Marks (2006) Andreassen B.A. and Marks S.P. (eds), Development as a Human Right (Cambridge, Mass., 2006).

Boyle (2007) Boyle A.E., Human Rights or Environmental Rights? A Reassessment (2007) 18 Fordham Env. LR--• [Reference not yet available].

Boyle and Freestone (1999) Boyle A.E. and Freestone D. (eds) International Law and Sustainable Development (Oxford, Oxford,1999).

Boyle (1999) Boyle A.E., The Gabcikovo-Nagymaros Case: New Law in Old Bottles (1997) 8 YbIEL 13.

Ebeku (2003) Ebeku K.S.A., The right to a satisfactory environment and the African Commission (2003) 3 African Human Rights Law Journal 149.

Hayward (2005) Hayward T., Constitutional Environmental Rights (Oxford, 2005), 180.

Higgins (2006) Higgins R., A Babel of Judicial Voices? (2006) 55 ICLQ 791.

Higgins (1999) Higgins R., ‘Natural Resources in the Case Law of the International Court’ in Boyle and Freestone (eds.) International Law and Sustainable Development (Oxford, 1999).

ILA (2006) ILA, 72nd Conference Report (2006), 495 & 499.

Lefeber (1996) Lefeber R., Transboundary Environmental Interference (The Hague, 1996), 23-25.

Loucaides (2004) Loucaides L., Environmental Protection through the Jurisprudence of the ECHR (2004) 75 BYIL 249.

Lowe (1999) Lowe I., ‘Sustainable Development and Unsustainable Arguments’, in Boyle and Freestone (eds.) International Law and Sustainable Development (Oxford, 1999).

Magraw and Hawke (2007) Magraw D. B. and Hawke L. D., ‘Sustainable Development’, in D.Bodansky, J.Brunnée and E.Hey (eds), Handbook of International Environmental Law (Oxford, 2007), Ch. 26.

Nwobike (2005) Nwobike J.C., The African Commission on Human and Peoples’ Rights and the Demystification of Second and Third Generation

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Rights under the African Charter (2005) 1 African Journal of Legal Studies 129 at 139.

Razzaque (2007) Razzaque J., Environmental Rights in India (2007) 18 Fordham EnvLR-• [No reference available yet.].

Shelton (2002) Shelton D., Decision Regarding case 155/96 (2002) 96 AJIL 937, 942.

World Bank 1995 World Bank Industry and Energy Operations Division, West Central Africa Department, Defining an Environmental Development Strategy for the Niger Delta, vol. 1 – para.B (1.6 – 1.7).

WCED (1987) World Commission on Environment and Development, Our Common Future (Oxford, 1987).

UN 1992 Report of the UN Conference on Environment and Development, UN Doc. A/CONF. 151/26/REV. 1, Vols. I-III (1992); reproduced with preparatory papers in N.Robinson, Agenda 21 and the UNCED Proceedings (6 vols, New York, 1992-3).

Table of Cases International Court of Justice •P  ulp Mills Case (Provisional Measures)(Argentina v Uruguay) (2006) ICJ Reports, 13 July 2006. •C  ase Concerning the Gabčíkovo-Nagymaros Dam (1997) ICJ Reports 7, para. 140. •E  ast Timor Case (1995) ICJ Reports 90.

European Court Of Justice • ECHR 9 December 1994 Lopez Ostra v. Spain 20 EHRR [1995] 277. • ECHR 19 February 1998 Guerra v. Italy 26 EHRR [1998] 357. • ECHR 9 June 2005 Fadeyeva v. Russia [2005] ECHR 376. • ECHR 10 November 2004 Taskin v. Turkey 42 EHRR [2006] 50 •F  redin v. Sweden (1991) ECHR Sers. A/192. • ECHR 8 July 2003 Hatton v. UK [2003] 37 EHRR 611. • ECHR 30 November 2004 Öneryildiz v. Turkey, 48939/99, [2004] ECHR-XII. • I lmari Lansman et al. v. Finland (1996) ICCPR Communication No. 511/1992, para. 9.5. • ECHR 22 May 2003 Kyrtatos v. Greece [2005] 40 EHRR 16, para. 52.

Inter-American Commission on Human Rights •C  ase of Caesar v. Trinidad and Tobago (2005) IACHR Sers. C, No.123, paras 6-12. (separate opinion of Judge Trindade).

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•T  he Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria, ACHPR, Communication 155/96 (2002). •L  ubicon Lake Band v. Canada (1990) ICCPR Communication No. 167/1984, para. 32.1. •B  run v. France (2006) ICCPR Communication No. 1453/2006, para.6.3. • I nter-American Court of Human Rights. •M  ayagna (Sumo) Awas Tingni Community v Nicaragua (2001), Ser. C, No. 79. •M  aya indigenous community of the Toledo District v. Belize, Case 12.053, Report No. 40/04, Inter-Am. C.H.R., OEA/Ser.L/V/II.122 Doc. 5 rev. 1 at 727 (2004). •Y  anomani Indians v. Brazil, Decision 7615, Inter-Am.C.H.R., InterAmerican YB on Hum.Rts. 264 (1985). •Y  akye Axa indigenous community of the Enxet-Lengua people v. Paraguay, Case 12.313, Report No. 2/02, Inter-Am. C.H.R., Doc. 5 rev. 1 at 387 (2002). •T  he Kichwa Peoples of the Sarayaku community and its members v. Ecuador, Case 167/03, Report No. 62/04, Inter-Am. C.H.R., OEA/Ser. L/V/II.122 Doc. 5 rev. 1 at 308 (2004). •M  etropolitan Nature Reserve v. Panama, Case 11.533, Report No. 88/03, Inter-Am. C.H.R., OEA/Ser.L/V/II.118 Doc. 70 rev. 2 at 524 (2003).

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Development – The Neglected Dimension in the Post-Rio International Law of Sustainable Development Nico Schrijver

chapter 2.3



development – the neglected dimension in the post-rio nternational law of sustainable development

1 Introduction

We are at a crucial juncture in moving our global society towards a sustainable future. Will we be able to curb climate change, stop the loss of biological diversity and reduce high levels of poverty, or will we fail? This question is equally important for the industrialized and the developing world. In the North we still maintain many unsustainable practices. We tend to operate structurally beyond the limits of what has been called the ‘environmental utilization space’, i.e. the regenerative capacity of nature and of our natural environment to serve as a basis for the supply of natural resources and the absorption of waste. While the developing world has made impressive development gains in recent decades, such as raising life expectancy, halving infant mortality rates, improving access to education, safe drinking water and basic sanitation, many countries are still caught in a vicious circle of environmental degradation, a shrinking area of cultivable land, widespread unemployment, growing inequalities and deepening of poverty. Hence, any strategy to pursue sustainable development must address economic, environmental and social concerns all at once. During the past thirty-five years there have been various global conferences on these issues, most notably the UN Conference on the Protection of the Human Environment (Stockholm, 1972), the UN Conference on Environment and Development (Rio de Janeiro, 1992) and the World Summit on Sustainable Development (Johannesburg, 2002). I do not subscribe to the cynical view that such summits are merely media circuses.  On the contrary, I believe that they have often served as a catalyst in identifying the core of problems (‘clearinghouses’) and the direction in which solutions may be sought (‘policy-making’), as well as providing platforms for dialogue, more or less as ‘the town meetings of our world’. Occasionally they can even perform a ‘quasi-legislative function’ in drawing up norms and adopting non-binding but legally relevant recommendations, which are often the forerunners of national legislation and international treaties. It is my proposition that the UN Conference on Environment and Development (Rio, 1992) performed all of these functions and can therefore, in retrospect, be considered a success. It resulted, among other things, in the signing of two important multilateral environmental treaties on Climate Change * 

Nico J. Schrijver holds the Chair of Public International Law at Leiden University, The Netherlands.

See Gillespie (2001).

 

Opschoor (1987).

For data see the annual World Development Reports, World Bank, Washington, and the annual UNDP Human Development Reports, United Nations, New York.



See also Fomerand: ‘UN global conferences mirror the pluralism of the world as well as its increasing interdependence and globalization. They reflect and perhaps amplify the ongoing changes of a revolutionary world seeking to be more equitable and democratic at one and the same time.’ Fomerand (1996), pp. 361-375, at p. 373.



Schrijver (1988), pp. 175-185, at pp. 178-79 and republished in Hastedt (ed.) (1995), pp. 215-24.

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and on Biological Diversity, as well as in the adoption of three non-binding documents: a Statement on Forest Principles, the Agenda 21 action programme for the next century and the 27-principle Rio Declaration on Environment and Development. Yet, I do not wish to conceal that at the time some people were more critical. For example, it was observed that the Rio Declaration is ‘a text of uneasy compromises, delicately balanced interests, and dimly discernible contradictions, held together by the interpretative vagueness of UN-ese’. Principle 27 of the Rio Declaration on Environment and Development calls for the further development of international law in the field of sustainable development. Chapter 39 of Agenda 21 adds that this should entail ‘a balanced and comprehensive international law on sustainable development’. From the context in which the concept of sustainable development has been used, it follows that the term aims to embody both the cause of promoting development and of preserving the environment, taking into account the interests of present as well as future generations of humankind. Now, twenty years after the Brundtland report and fifteen years after the Rio Summit, it is time to draw up the balance. What is meant by the concept of sustainable development? What about its inception in international law? What has been the fate of efforts to integrate, if not marry, the international law of development and international environmental law? How have they fared individually? Have their main principles and rules entered the corpus of international law, in terms of treaty law, customary international law and judicial decisions? Or have they remained mainly confined to academic literature, political documents and ‘soft law’ at best? And what is the impact of the increased status of human rights on the sustainable development discourse in international law? These are the questions I wish to address in this chapter, preceded by a section on the nature and the role of public international law in order to set the stage.



2 The Nature and Role of Public International Law

Traditionally, international law regulates the relations between States and delineates the borders of State territory and jurisdiction. For that reason it was for a long time in the first instance a law of delimitation and coexistence. In addition to this still important function, international law is nowadays also understood as providing a framework within which the various members of the international community may cooperate, establish norms of  

For a concise review see Grub et al. (1993); Reid (1995).

Porras, in Sands (ed.) (1993), pp. 20-34, at p. 23.



For example Oppenheim’s International Law provides the following definition: ‘International law is the body of rules which are legally binding on States in their intercourse with each other. These rules are primarily those which govern the relations of States, but States are not the only subjects of international law’. Jennings and Watts (eds) (1996), p. 4.

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behaviour and resolve their differences. Increasingly, it is no longer a neutral regulatory framework for relations between States and other subjects of international law. It also promotes and secures the development of a value-driven international society, based on norms such as peace and security, respect for human rights and humanity (also in times of armed conflict), development and environmental conservation. We can observe a growing circle of participants in the creation, interpretation, application and enforcement of international law. States and their international organizations are and remain the primary actors, but individuals, people’s organizations, interest and social groups, and multinational corporations also participate. To a certain extent they may nowadays also be the subjects of rights conferred and duties imposed under international law. In a similar vein we can note that international law is no longer embedded solely in the traditional sources listed in the Statute of the International Court of Justice, including treaty law, customary international law, general principles of law and judicial decisions. These are still the main sources, but resolutions of the political organs of the United Nations can also have legal effects or – as Bin Cheng once put it – serve as ‘midwife for the delivery of nascent rules’.10 In the specific field of sustainable development, it is often stated that international law is no longer attuned to current concerns and does not fit the reality of a global market economy and an environment consisting of a biosphere of interdependent ecosystems that do not respect artificial boundaries between States.11 Such concerns are echoed in the report of the Brundtland Commission, when it observes that ‘international law is rapidly being outdistanced by the accelerating pace and expanding scale of impacts on the ecological basis of development’.12 Ecological interdependence, globalization, liberalization, privatization – these all certainly pose great challenges to international law, but I sincerely believe that they have not pushed it to one side. International law has proved to be highly adaptive. In the field of sustainable development it serves as both a value system and a regulatory framework, including progressively more international agreements on natural resources and ecosystems, for example specific species of fish, the ozone layer and biological diversity.13



3 Sustainable Development – Exploring the Concept

During the 1960s the global extent of resource depletion and environmental degradation came to the fore. The growing international aware

Article 38 of the Statute of the International Court of Justice.

10 11

Cheng (1965), pp. 23-48, at p. 39.

See Sands 1999a pp. 116-137, at p. 119.

12 13

WECD,1987, p. 330.

See Schrijver 1999, pp. 65-98.

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ness was closely associated with Rachel Carson’s book Silent Spring (1962) and with the Club of Rome Report The Limits to Growth (1972), as well as with the long-term harmful effects on nature of products containing DDT, with tanker collisions and excessive economic growth. It was realized that ‘the human environment’ as such was at stake. People began to see the world as an entity, as ‘spaceship earth’, rather than as an area split up into a number of sovereign, territorial entities. It affected our conceptions of State sovereignty.14 At the same time it became clear that the environmental problems of destitute developing countries and affluent industrialized countries differed essentially. The latter considered whether a pause in their economic growth, or even deceleration, would be necessary.15 In contrast, in developing countries economic growth was below needs and their major environmental problems resulted primarily from a lack of development. The Stockholm Declaration on the Protection of the Human Environment of 1972 was the first major political document to proclaim that improvement and defence of the human environment had become an imperative goal of humankind, to be pursued together with other fundamental international public policy goals such as peace and security, and worldwide economic and social progress.16 In Principles 8 to 13, the Declaration emphasized the correlation between development and environment. After stating in Principle 8 that economic and social development are essential for an environment favourable to human beings, Principle 9 points out that ‘environmental deficiencies generated by the conditions of underdevelopment and natural disasters’ can best be remedied by accelerated financial and technical assistance. It also provided that, for developing countries, stability of commodity prices is essential to environmental management. Principle 11 stipulates that environmental policies should enhance and not adversely affect the development potential of developing countries and the attainment of better living conditions for all. Principle 13 provides that: In order to achieve a more rational management of natural resources and thus to improve the environment, States should adopt an integrated and coordinated approach to their development planning so as to ensure that their development planning is compatible with the need to improve and protect the human environment for the benefit of their population.

14

For example, Tinbergen (coord.) 1976 pp. 83-84 introduced the concepts of ‘functional sovereignty’ and ‘planetary sovereignty’.

15

See Goudzwaard and De Lange 1995.

16

The importance of recognizing the different starting points and differentiated responsibilities of industrialized and developing countries with respect to environmental degradation was emphasized in early UN resolutions on the conservation of nature. See UNGA Res. 1831 (XVII), 1962 on ‘Economic Development and the Conservation of Nature’ and UNGA Res. 2398 (XXIII), 1968, deciding to convene a UN Conference on the Protection of the Human Environment in 1972.

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Other relevant documents include the World Charter of Nature and the UN Convention on the Law of the Sea. The World Charter of Nature was adopted by the UN General Assembly in 1982,17 building on the IUCN World Conservation Strategy of 1980. As a matter of fact the Strategy was the first main instrument to use the word ‘sustainable’ in the context of the utilization of natural resources. It also spoke of ‘sustainable benefit to present generations while maintaining [the potential of the biosphere] to meet the needs and aspirations of future generations’.18 Hence, we have here an early version of what was later coined as the principle of ‘intergenerational equity’. The 1982 UN Convention on the Law of the Sea included an entire part on Protection of the Marine Environment. Its opening Article 192 affirms in concise terms: ‘States have the obligation to protect and preserve the marine environment’. Furthermore, the Convention elaborates specific rules for carrying out that obligation, e.g. by limiting fishing efforts to an ‘allowable catch’ to be based on the principle of ‘maximum sustainable yield’, and by prescribing measures to prevent, reduce and control pollution. It is also interesting to note the Convention’s integrated, holistic approach, reflected in the desire to settle ‘all issues relating to the law of the sea’ because ‘the problems of ocean space are closely interrelated and need to be considered as a whole’.19 Yet, it was the World Commission on Environment and Development, commonly known as the Brundtland Commission, which gave the term ‘sustainable development’ a more general application in its report Our Common Future (1987), by seeking to integrate environmental and developmental concerns ‘to ensure that it meets the needs of the present without compromising the ability of future generations to meet their own needs’.20 The 1992 Rio Declaration on Environment and Development endorsed the concept of ‘sustainable development’, as did the accompanying Agenda 21 and environmental treaties. Principle 1 of Rio provides: ‘Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature’. Principle 3 of the Rio Declaration reiterates the right to development, which had been the subject of a rather controversial Declaration of the General Assembly of 1986 (UN Doc. A/41/128, 4 December 1986), and gives recognition to the concept of intergenerational equity. In various places in Principles 4 to 7, the Declaration indicates that environmental preservation and the promotion of development are interrelated and that an integrated approach is called for. Principle 4 plainly states that ‘environmental protection shall constitute an integral part of the development process’. 17

UN Doc. A/RES/37/7, 1982.

18

IUCN et al., World Conservation Strategy: Living Resource Conservation for Sustainable Development, 1980; see also the IUCN report, Caring for the Earth: A Strategy for Sustainable Development, 1991.

19

See the UN Convention on the Law of the Sea, December 1982. See also World Commission on the Oceans (1998).

20

World Commission on Environment and Development, (1987), p. 43.

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In comparing the Stockholm and Rio Declarations, it appears that the Stockholm Declaration contains more specific and substantive provisions pertaining to natural resource management than the Rio Declaration.21 The latter is perhaps less ‘environment-centred’ and links environmental preservation more closely to poverty eradication. For this reason some criticize the Rio Declaration for representing ‘a triumph of unrestrained anthropocentricity’,22 but in my view this neglects the close link between environmental conservation and poverty eradication. If we carefully analyse the development of what became the concept of ‘sustainable development’ through the political organs of the United Nations and treaty law, we may be able to present it in more practical detail.23 I would like to identify seven main dimensions of the concept. It seems clear, from a reading of the forerunners of the Rio texts, that the term was intended first of all to mean sustainable use of natural resources. It was thus essentially a principle of conservation, directed at the conservation and rational, prudent use of non‑renewable resources, and the indefinite maintenance of the productivity of renewable resources. This particular interpretation of the term sustainable development has remained strong. It received additional emphasis by the realization that human life on the planet depends on the continued existence of its physical and biological systems within a relatively and perhaps increasingly narrow range of parameters. These conditions not only relate to the maintenance of productive ecosystems, both terrestrial and marine, but also to the continued existence of the ozone layer and climate system. The Rio documents altered the original meaning of the term ‘sustainable development’ and broadened its scope from ‘sustainable use of natural resources’ to poverty reduction and economic development for the developing countries, and economic growth for all. This may well have been a convenient compromise. The industrialized countries feared the threat of regulation of access to natural resources and ultimately, modification of production and their consumption patterns and lifestyles, and a slowing of economic growth among them should the strong emphasis on conservation prevail. The developing countries, on the other hand, saw in the term ‘sustainable development’ a certain potential for re‑affirming the development assistance ‘responsibilities’ of the industrialized world; responsibilities that had been de‑emphasized, if not lost altogether, with the demise of the ‘new international economic order’ under pressure from advancing ‘market‑oriented approaches’ in the 1980s and 1990s. ‘Sustainable development’ as interpreted by the Rio Declaration of Principles represents a balance between the concerns of the industrialized and the poor countries.

21

Schrijver (1997), pp. 139-140.

22 23

Pallemaerts (1993), p. 12.

See on this Pinto (1998), pp. 13-14; Boyle and Freestone (1999), pp. 8-16; Fitzmaurice (2001), p. 9.; French (2005); Cordonier Segger and Khalfan (2004); Schrijver (2007), p. 592.

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From the Rio Declaration emerges a third strand of the concept of sustainable development: the integration of developmental and environmental concerns. This integration principle is well formulated in Principle 4 of the Rio Declaration (‘environmental protection shall be considered an integral part of the development process and cannot be considered in isolation from it’), but is also evident from its ensemble with neighbouring Principle 3 on the right to development and Principle 5 on the need to eradicate poverty. Obviously, building on the UN Charter principle of the duty to cooperate it calls for a global partnership for sustainable development. A fourth main element to be derived from sustainable development is interand intra-generational equity. It calls for taking into account the interests of both present and future generations of humankind. This first of all means that States and people should manage their natural environment such that they not only conserve their flora and fauna, including wetlands of international importance and endangered wildlife species, but also assure its capacity for sustainable use by future generations. Intra-generational equity stipulating equitable use of natural resources, e.g. to take into account the needs of other users and necessitating assistance by industrialized countries to developing countries, forms an inherent part of the fulfilment of our intergenerational obligations. Hence, also here there is a balance between realizing the aspirations for development of current generations and the more environmentally inspired international guardianship of intergenerational rights. A fifth element of the concept of sustainable development is the time dimension. Obviously, not only does sustainable development call for a long-time horizon (sustainability, also for future generations) but also for the short term, time is of the essence in pursuing sustainable development. Climate change especially brings us face-to-face with the uncomfortable reality that we cannot afford endless delays before taking major environmental policy initiatives. As former UN Secretary-General Kofi Annan put it: ‘Today, the time for a well-planned transition to a sustainable system is running out. We may be running in the right direction, but we are moving too slowly. We are failing in our responsibility to future generations and even to the present one.’24 A sixth is public participation and respect for human rights. Principle 1 of the Rio Declaration reaffirms that human beings are ‘entitled to a healthy and productive life in harmony with nature’ and Principle 3 stipulates that ‘[t]he right to development must be fulfilled’, while Principle 10 calls for ‘participation of all concerned citizens’ and for each individual to have ‘appropriate access to information’ and ‘the opportunity to participate in decision-making processes’. Admittedly, such provisions fall short of acknowledging clear-cut human rights, but they do coincide with an increased status of human rights law as a result

24

Speech delivered in Dhaka, Bangladesh, as reproduced in 31 Environmental Policy and Law (2001), p. 181.

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of the end of the Cold War, and some openings towards recognizing a right to development and a right to a clean environment as human rights.25 A seventh and last element could be said to be good governance, a principle that has acquired a quite central place in the development debate.26 It also is part of the rising call for more democratic and more responsible governments and of the greater emphasis on human rights and the duties of the government towards its own citizens. Hence this principle consists of both substantive elements relating to general principles of governance of a constitutional State and procedural elements relating to transparency and accountability.27



4 The Inception of Sustainable Development in International Law

The phrase ‘sustainable development’, as launched in the Rio Declaration, has found recognition in international legal instruments remarkably quickly. Various environmental treaties have incorporated it, for example the Climate Change Convention, the Convention on Biological Diversity and the Anti-Desertification Convention. It also features in the World Fisheries/Straddling Stocks Convention as well as in the preamble of the 1995 Agreement on the Establishment of the World Trade Organization. The WTO includes among its goals the ‘optimal use of the world’s resources in accordance with the objective of sustainable development’. Reference may also be made to the prominent place of sustainable development as an objective in the law of the European Union (as revised through the Treaties of Maastricht (1992), Amsterdam (1997), Nice (2001) and Lisbon (2007)) as well as in the development cooperation arrangements between the European Union and (now 79) developing countries, the Cotonou ACP-EU Partnership Agreement (2000, revised in 2005). For example, the Treaty on European Union, as amended with the Lisbon Treaty, provides that the Union ‘shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment’ (Art. 3). These new objectives 25

See the Vienna Declaration and Programme of Action of the World Conference on Human Rights, 1993, in UN Conf. A/CONF. 157/23; see also McGoldrick (1996), pp. 796-818.

26 27

Seidman, Seidman and Wälde (1999); Weiss (2000); for a critical perspective see Anghie (2005), Ch. 5.

Article 9 of the Convention of Cotonou (2000, revised in 2005) contains a reasonably accurate description: ‘good governance is the transparent and accountable management of human, natural, economic and financial resources for the purposes of equitable and sustainable development. It entails clear decision-making procedures at the level of public authorities, transparent and accountable institutions, the primacy of law in the management and distribution of resources and capacity building for elaboration and implementing measures aiming in particular at preventing and combating corruption.’

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are a clear policy response to the call for ‘sustainable development’ as adopted at UNCED in 1992. Obviously, the Union aims to foster a type and pace of economic growth which does not lead to exhaustion of non-renewable natural resources and to irreparable damage to the physical and natural environment. This goal should be viewed in conjunction with the social objectives of the Union such as promoting a high level of employment and social cohesion. Article 11 of the Treaty on the Functioning of the European Union (formerly Treaty establishing the European Community) is most interesting in respect of integration. It stipulates the integration of environmental protection requirements in all Union policies and activities ‘with a view to promoting sustainable development’. Similar wording is also employed in the only real ‘coherence’ and ‘integration’ article in the field of development cooperation, namely Article 208, providing inter alia: ‘The Union shall take account of the objectives of development cooperation in the policies that it implements which are likely to affect developing countries.’ Sustainable development is also an objective in the EU-ACP development cooperation treaties.28 Article 1 of the Cotonou partnership agreement (2000/2005) clearly links the pursuance of sustainable development to poverty reduction. Furthermore, the sustainable utilization and management of natural resources are identified as one of the three crosscutting issues, alongside gender issues and institutional capacity building.29 It is interesting to note that sustainable development and related concepts also feature in a number of international judicial decisions of the post-Rio period.30 Reference should first of all be made to the International Court of Justice. In the aborted New Zealand v. France Nuclear Tests Case (1995) the Court pronounced that its Order was ‘without prejudice to the obligations of States to respect and protect the natural environment’.31 In its Advisory Opinion to the UN General Assembly on The Legality of the Threat or Use of Nuclear Weapons the Court made reference to Principle 24 of the Rio Declaration on Environment and Development (on protection of the environment in times of armed conflict). The Court stated that ‘the environment is not an abstraction, but represents the living space, the quality of life and the health of human beings, includ28

For a discussion of European development cooperation policies see Arts (2000); and Babarinde and Faber (eds) (2005).

29

See Articles 36-38 of the Partnership agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part (Cotonou Agreement), Cotonou, 23 June 2000, entered into force on 1 April 2003; 2000 O.J. (L 317) 3; revised by the Agreement amending the Partnership Agreement between the members of the African, Caribbean and Pacific Group of States, of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000, adopted on 25 June 2005 (not yet in force); 2005 O.J. (L 209) 27.

30 31

See in particular Sands (1999b), pp. 389-403.

ICJ Order of 25 September 1995. ICJ Reports 1995, para. 64.

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ing generations unborn’. Moreover, the Court concluded: ‘The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is part of the corpus of customary international law relating to the environment’.32 In its judgment in the case concerning the Gabcikovo-Nagymaros project between Hungary and Slovakia the Court re-emphasized and elaborated on this principle: ‘ [N]ew norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such standards given proper weight, not only when States contemplate new activities, but also when continuing activities begun in the past. This need to reconcile development with protection of the environment is aptly expressed in the concept of sustainable development.33

Judge Weeramantry, in his separate opinion, went a few steps further by stating that sustainable development is ‘part of modern international law by reason not only of its inescapable logical necessity, but also by reason of its wide and general acceptance by the global community’, reaffirming that ‘in the area of international law… there must be both development and environmental protection, and that neither of these rights can be neglected’. He added: The problem of steering a course between the needs of development and the necessity to protect the environment is a problem alike of the law of development and the law of the environment. Both these vital and developing areas of the law require, and indeed assume, the existence of a principle which harmonizes both needs.34

Second, reference can be made to the pronouncements by the WTO Appellate Body, most notably in the United States-Import Prohibition of Certain Shrimp and Shrimp Products Case (1998), commonly known as the Shrimp Turtles case between the US and India, Malaysia, Pakistan and Thailand. In its interpretation of exception article XX(g), which permits in deviation of the GATT rules the taking of measures ‘relating to the conservation of exhaustible natural resources’, the Appellate Body referred to ‘contemporary concerns of the community of nations about the protection and conservation of the environment’ and to the fact that the Preamble of the WTO Agreement explicitly acknowledges the objective of sustainable development, a concept which in its view ‘has been generally accepted as integrating economic and social development and environmental protection’. Hence, the Appellate Body deemed US 32 33

ICJ Reports 1996, para. 29.

ICJ Reports 1997, para. 140 (emphasis added).

34

Ibid., pp. 88-119, at p. 95.

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legislation ‘provisionally justified’ under Article XX(g). Although the Appellate Body ultimately decided that the US measures constituted unjustifiable discrimination, the various references to sustainable development and legitimate environmental concerns differ from earlier decisions of GATT panels, especially the Tuna/Dolphin panels (Mexico/US). From this brief review of significant recent developments it follows that sustainable development has become an established objective of the international community and a concept with an established status in international law. This is not to say that its content is clear, although I believe Lowe stretches the counter-argument somewhat too far in his otherwise excellent chapter on ‘Sustainable Development and Unsustainable Arguments’ where he claims that sustainable development ‘is rooted in theoretical obscurity and confusion, and it suffers from the same reluctance to test theoretical principles for their practical utility that impedes the development of many other areas of international law’.35 However, he adds that this is not to say that it has no normative status whatever. To what extent can we now observe the emergence of an international law ‘of’ or ‘for’ sustainable development, as we could note in the recent past the evolution of the international law of development and international environmental law?



5 The Evolution of International Environmental Law and the International Law of Development Towards Sustainable Development

Study of the current state of international law concerned with sustainable development produces a mixed picture. Steady progress can be noted as regards the consolidation, further development and implementation of international environmental law, whereas international law and organization relating to development has practically come to a standstill. In the field of environmental law considerable activity can be noted indeed, and international environmental law is nowadays certainly an established chapter of international law.36 A host of new multilateral and regional environmental treaties have been concluded since 1992, as were a number with strong environmental components such as the Energy Charter Treaty (1994) and the UN Fisheries/Straddling Stocks Conven35

Lowe 1999, pp. 30-31. He also states that sustainable development ‘is clearly entitled to a place in the Pantheon of concepts that are not to be questioned in polite company, along with democracy, human rights, and the sovereign equality of States.’ Similarly, Brownlie writes: ‘For the present, the concept remains problematic and nebulous, appearing more as a statement of the issues than as a resolution of the basic problems’. Brownlie (1999) p. 287.

36

This is illustrated by the fact that as from the fifth edition of Brownlie’s Principles of Public International Law came to include a new chapter on ‘Legal Aspects of the Protection of the Environment’ as well as the series of textbooks on international environmental law, most notably those of Birnie and Boyle (2002) and Sands (2003).

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tion (1995). I have already referred to the incorporation of ‘sustainable development’ as an objective in the WTO Agreement and European Union law. At the inter‑regional level the EU-ACP Cotonou Partnership Agreement (2000/2005) incorporates sustainable development, while progress was also achieved at various regional levels, such as in the context of Mercosur. Increasingly, the Rio principles are being included in national legal instruments, especially elements of the precautionary principle, the polluter‑pays principle, environmental impact assessment and the principle of participation. In addition, in various countries the judiciary has been active in protecting the environment, often with reference to international legal instruments. What about the international law of development? In the UN Charter, international economic and social cooperation among nations features as one of the objectives of the Organization. Development as such is only cursorily mentioned in Article 55. Yet, as a result of the formulation of human rights and the decolonization process, the promotion of the development of the developing countries soon became a more prominent objective of the United Nations Organization. As a result the classical Bretton Woods trinity of legal principles – freedom, equality and reciprocity – became supplemented, if not to a certain extent amended, by newly emerging international law principles, including:37 • permanent sovereignty over natural resources; • t he right to freely choose one’s own socioeconomic system; • t he duty to cooperate for world economic development, in particular the development of developing countries; • t he entitlement of developing countries to development assistance and transfer of technology; • t he preferential treatment of developing countries in international trade; • participatory equality in international economic decision-making; • t he common heritage of humankind. While these principles vary considerably in terms of their legal status and application in practice, they share the common objective of strengthening the position of developing countries in international relations and enhancing their opportunities for development. They gave rise to what was alternatively called an international law of development,38 or international development law or – more purposively – international law for development or droit international du développement.39 A number of new multilateral treaties were concluded which embodied some of the above-mentioned principles: e.g., the 1974 Code of Conduct on Liner Conferences, the 1980 Agreement on the Establishment of a Common 37

See on this VerLoren van Themaat (1981); Abi-Saab (1984); and Verwey (1981), pp. 1-78.

38

Bulajic defines international law of development as ‘the law regulating the relations among sovereign but economically unequal states’. Bulajic (1993), p. 49.

39

See Pellet (1978); Flory (1978); Kaltenborn (1998); Bradlow (2004), p. 195; and Schrijver and Weiss (2004).

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Fund for Commodities, the 1982 UN Convention on the Law of the Sea, as well as the successive Lomé Conventions between the European Community and ACP countries (1975-2000). However, progress proved to be difficult, partly due to external constraints and partly due to internal factors within developing countries. The effort of the NIEO resolutions to force a breakthrough through confrontation rather than cooperation failed. 40 In the late 1970s and throughout the 1980s a more pragmatic strategy was adopted, albeit also with only limited success. In the context of the International Law Association a major effort was made to formulate a coherent set of principles, an effort which resulted in the ‘Seoul Declaration on the Progressive Development of Principles of Public International Law Relating to a New International Economic Order’, adopted on 30 August 1986. 41 While all these documents and instruments are certainly useful, their impact on the development opportunities of developing countries should not be overestimated. At the same time, some developing countries managed to do remarkably well, especially the newly industrializing countries in Asia and some Latin American countries. Of course, this also led to a review of their status of beneficiary countries under preferential or differential treatment. This gave rise to the emergence of a new principle, i.e. graduation and integration of developing countries, most notably in international trade law. As to the developments in the field of the international law of development during the post-Rio period, reference can only be made to the belated entry into force in 1994 of the 1982 UN Convention on the Law of the Sea (as supplemented and in part emasculated by the 1994 Agreement relating to Part XI), the adoption of the Agreement Establishing the World Trade Organization and related treaties which are part of the full package as a ‘single agreement’, the revised EC-ACP Lomé Iv bis (1995) and Cotonou Agreements (2000/2005) and some regional South–South cooperation efforts in for example the southern parts of Latin America (Mercosur) and Africa (COMESA, Community of Eastern and Southern African States, African Union). However, the new trade arrangements within the framework of EU-ACP cooperation are going to introduce a drastic break with the past. They result from the considerable pressure arising from the new WTO agreements, as reflected in for example the Banana cases. 42 This may well pose a threat to social stability of those developing States which are heavily dependent on such preferential trade preferences to safeguard their access to the EU market. Under the EU-ACP arrangements under the Cotonou Convention the preferential system will be replaced, after a transition period, by WTO compatible Economic Partnership Agreements (EPAs) aiming at progressively establishing free trade areas. Least-developed ACP countries will continue

40 41

Meagher (1979).

Text published in Report of the 62nd Conference of the ILA held at Seoul. London, 1987, p. 2.

42

See on this Weiss (1999), pp. 319-335.

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to receive special and differential treatment under the Everything But Arms initiative. 43 While an argument could certainly be made to view the creation of ever more instruments for the encouragement of investment (BITs, MITs) as progress, work on grand projects such as UN codes of conduct on transnational corporations and on transfer of technology has come to a halt. Instead, in recent years the investment regulation debate was for a while dominated by efforts to conclude a Multilateral Agreement on Investment (MAI) in the context of the Organization for Economic Cooperation and Development (OECD). Extensive rights were granted to foreign investors without imposing any duties on them. Concerns relating to cultural identity, employment, labour standards, human rights, consumer protection and environmental conservation were hardly addressed. While the aim was to establish ‘a broad multilateral framework for international investment’, developing countries were not involved in the drafting of the MAI. 44 They would be welcome to accede to the MAI, but after its conclusion. It was for them, but without them. While I believe that there is a case for concluding a multilateral investment agreement, I have not shed one tear for the failure of the MAI. While we can still observe a commitment to assist developing countries in their development and in coping with the potential negative aspects of globalization, in general terms we cannot but note the erosion of some ‘traditional’ principles of the law of international development cooperation: equality is increasingly being replaced by conditionality, partnership by ‘take it or leave it’, preferential treatment in favour graduation and integration into the WTO regime and by common, but differentiated obligations in international environmental regimes. This unbalanced development of international law concerned with sustainable development and the lack of a normative structure for international economic relations between developing and developed countries, particularly the absence of a ‘human face’ for the international economic order, are major causes of concern. 45 They call for a better integration of international environmental law, international economic law relating to development and human rights law, to arrive at a comprehensive international sustainable development law. In recent years it also became apparent that a perceived neglect of the interests and special needs of developing countries still gives rise to strong protests from many circles, including civil society in the West. It is a considerable challenge for international lawyers to analyse which parts of the international law of development cooperation should and could be consolidated, how they could be integrated with international environmental law, where and how 43

Council Regulation (EC) No 416/2001 of 28 February 2001. For an initial assessment, see Brenton (2003).

44 45

See on this Schrijver (2001), pp. 17-34, at pp. 29-33.

See Weiss, Denters and Waart (1998).

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international law is to take new directions through normative developments and practice, and to what extent international law can contribute to the integration of international public policy goals in the fields of human rights, development and environmental protection, i.e. to promote sustainable development. What could be the contribution of international lawyers and what could be the contours of such an international law of sustainable development?



6 An International Law of Sustainable Development under Construction

It follows from the previous sections that the development of international law in the field of sustainable development is derived from three chapters of international law: (1) international law relating to development; (2) international environmental law; and (3) international human rights law. Consequently, principles and rules of each of these three branches feed the development of international law in the pursuance of sustainable development. A number of general and specific principles of international law are at the core of the international law of sustainable development. Taken together, they may well be viewed as a framework for an international law of sustainable development. In the first part of this section, several general principles of international law are discussed which have become important pillars of international law on sustainable development. In the next part, more specific principles are examined on the basis of the ILA New Delhi Declaration of Principles of International Law Relating to Sustainable Development (2002). In neither part is there a pretence to draw up an exhaustive list of principles. Moreover, their legal status differs. Some are generally accepted, while others are still gaining acceptance. However, these principles are central to the political and scientific debate on the evolution of international law relating to sustainable development. As to the general ones, obviously a first one is the rule of law in international economic relations. This entails a duty incumbent on States (and on international institutions) to abstain from measures of economic policy incompatible with their international obligations and detrimental to the sustainable development opportunities of third countries. Treaties and binding decisions by international institutions have to be fulfilled in good faith by the parties concerned. This brings us to the principle of the duty to cooperate on global development and protection of the environment. In today’s world this principle no longer applies exclusively to States, but also to international institutions, civil society and the business community – as contracted in this mission by former UN SecretaryGeneral Kofi Annan through his Global Compact. Third is the principle of observance of human rights, both economic, social and cultural rights and civil and political rights. This principle is instrumental in integrating human rights concerns in the sustainable development movement as well as emphasizing the

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preponderant role of popular participation in promoting development, social progress and environmental conservation. The right to development may well perform an integrative role as ‘an inalienable human right by virtue of which every human person and all peoples are entitle to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized’. 46 This requires that the discussion of this right moves away from ideological controversies47 and instead focuses on efforts on how to implement the right to development as a human and people’s right. The UN high-level task force on the right to development advocates such a pragmatic approach by developing a set of criteria to assess the implementation of the right to development and by applying these to selected global partnerships under the purview of Millennium Development Goal Eight, such as Paris Declaration on Development Effectiveness, the ECA/OECD-DAC Mutual Review of Development Effectiveness, the intra-African Peer Review Mechanism, the ACP-EU Partnership Agreement (Cotonou Convention) and multi-stakeholder initiatives to promote access to affordable essential drugs in developing countries. 48 As regards more specific principles, I would like to report on work conducted in my capacity as Rapporteur of the Committee on Legal Aspects of Sustainable Development. The International Law Association, the major professional worldwide association of international lawyers founded as long ago as 1873, had charged our Committee with the task of identifying existing and new principles of international law in the field of sustainable development. This effort resulted in the drafting of an ILA Declaration of Principles of Public International Law in the Field of Sustainable Development. 49 In carrying out this task, we were in the fortunate position to be able to learn from and to build on the work of various other institutions, governmental and non-governmental ones. This includes the Report by the Brundtland Legal Experts Group on Environmental Law (1987),50 reports by groups of experts convened by the UN Secretariat (1995) and UNEP (1997, 2000), the revised IUCN Draft Covenant on Environment and Development and the Earth Charter (2000). The ILA identified seven principles of international law in the field of sustainable development. The first one is the principle of the duty to ensure 46

See Art. 1 of the 1986 Declaration on the Right to Development, A/RES/41/128, 4 December 1986. See for an early contribution Chowdhury, Denters and de Waart (1992) and for a recent one Andreassen and Marks (2007).

47

A recent example of such a confrontation is A/RES/61/161, 18 December 2007.

48

See Report of the High-level Task Force on the Implementation of the Right to development on its fourth session, 7-15 January 2008, in UN Doc. A/HRC/8/WG.2/TF/2, 24 January 2008.

49

Published in various sources, including UN Doc. A/57/329, 31 August 2002; 49 Netherlands International Law Review (2002), p. 299; and International Law Association, Report of the 70th Conference, New Delhi 2002, London, 2002, p. 22 (also available at ).

50

Munro and Lammers (1987).

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sustainable use of natural resources. It requires States and peoples to pay due care to the environment and to make prudent use of the natural wealth and resources within their jurisdiction. It is an offspring of the established principle of sovereignty over natural resources according each State the right to possess and determine freely the management of its natural resources for its own development within the limits of international law. The particular meaning of this principle dominated the discussions in the context of the United Nations during the 1960s and 1970s. During recent decades this has been supplemented by an obligation incumbent upon territorial States to protect not only the environment of areas beyond national jurisdiction, but also their own environment. Indeed, resource sovereignty has increasingly been interpreted as giving rise to a series of duties as well, most notably the duty of sustainable and prudent use of natural resources, protection of biological diversity and elimination or reduction of the effects of over-exploitation of soil, deforestation, over-fishing and pollution.51 It should be noted that the Stockholm Declaration was among the first documents which stipulated that the principle of sovereignty over natural resources must be exercised in an environmentally responsible way. Especially its Principle 21 called for the prevention of extraterritorial effects causing environmental damage in other countries or in areas outside national jurisdiction. This is repeated in Principle 2 of the Rio Declaration, with the notable addition of the words ‘and developmental needs’ in the phrase that all States have the sovereign right to exploit their natural resources ‘pursuant to their environmental and developmental needs’. The principle of sovereignty over natural resources and the corollary responsibility not to cause transboundary damage is included in various treaties, including UNCLOS, the Climate Change Convention, the Convention on Biological Diversity and the European Energy Charter Treaty. Principle 2 of the Stockholm Declaration also pointed out that careful planning and rational management are required for safeguarding the natural resources of the earth. Ever since, UN resolutions have gradually elaborated standards for nature conservation and utilization of natural resources. This principle of sustainable use of natural resources is also amply reflected in treaty law, including in the fields of the law of the sea (through the notion of ‘maximum sustainable yield’), natural resource exploitation (e.g. Tropical Timber Agreement), nature conservation and the environment. The Convention on Biological Diversity provides a clear definition of sustainable use: ‘the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs of the present and future generations’.52 In this way the principle of sustainable use is closely related to the second principle of equity and the eradication of poverty, perhaps still an emerging one in international law. According to this principle, States must take into account 51

See Schrijver (1997).

52

Article 2 of the UN Convention on Biological Diversity, 1992.

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the interests of both present and future generations. The principle of equity is a principle of international law of a rather more general nature, enabling the international community to take into account considerations of justice and fairness in the formation, application and interpretation of international law. Treaty law refers frequently to equity or equitable principles, both in the environmental field (e.g. Climate Change Convention) and the law of the sea (e.g. as regards maritime delimitation). The principle of inter-generational equity has been well defined by Edith Brown-Weiss, reflecting the view that as ‘members of the present generation, we hold the earth in trust for future generations’, while ‘at the same time we are beneficiaries entitled to use it’.53 The Stockholm Declaration referred in its Principle 1 already to a ‘solemn responsibility to protect and improve the environment for present and future generations’, while Rio Principle 2 includes the objective ‘to equitably meet developmental and environmental needs of present and future generations’. Intergenerational equity as a principle has found recognition in the law of the sea, outer space law, international wildlife law (early applications are the Whaling Convention and the World Heritage Convention) and international environmental law, albeit that here sustainability and preservation are also based – and ought to be – on the intrinsic value of nature and fauna and flora rather than the needs and interests of future generations of humankind. However, outside these fields the status of the principle of intergenerational equity is still uncertain. It is interesting to note the landmark decision of the Supreme Court of the Philippines in the Minor Oposa case when it provided locus standi and acceded to the claims of NGOs on behalf of children and future generations against drastic deforestation plans and actual logging licences,54 but this national decision on its own cannot accord the principle of intergenerational equity a firm status in international law with respect to the management of natural resources and the environment within national jurisdiction. It is often argued that the principle of equity includes intra-generational equity relating to members of current generations of humankind, necessitating assistance by the industrialised States to developing States. This may be reflected in various stipulations aimed at a fair and equitable utilisation of shared natural resources in international areas. However, in general terms this concept of intra-generational equity has received an inadequate follow-up in practice. Hence, it must be concluded that, so far, intra-generational equity has occupied too little ground in international law and international relations to qualify as an existing or emerging new principle. By contrast, the third principle of common but differentiated obligations has a firm status in various fields of international law, including human rights law, international trade law and international environmental law.55 Principle 7 of Rio reads in part: 53

This principle was coined by Brown Weiss (1989). See also Redgwell (1999).

54 55

Text in 33 ILM (1994), p. 173.

See on this principle French (2000), pp. 34-60.

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In view of the different contribution to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.

An obvious example is climate change. The Climate Change Convention and its Kyoto Protocol seek to achieve the stabilization of greenhouse gas concentrations in the atmosphere at a level which would prevent dangerous anthropogenic interference with the world’s climate system and they commit industrialized countries to take measures with the aim of returning by the 2008–12 budgetary period to the 1990 emission level of greenhouse gases. The rationale for differentiation is twofold. Firstly, it is recognized that so far the bulk of global emissions of greenhouse gases originates in industrialized countries and they should thus bear the main burden for combating climate change. Secondly, developing countries need access to resources and technologies in order to be able to achieve sustainable development. While we have thus noted a hole in the traditional bulwarks of the principle of sovereign equality, it goes even one step further through the principle of the recognition of the special needs and interests of economies in transition and least developed countries. The first category may be a temporary one with special relevance in the fields of international financial, monetary and environmental law. The category of ‘least developed countries’, currently numbering 50,56 has a somewhat longer history and roots in some other fields of international law as well, including the law of the sea, international trade law and international development cooperation arrangements. Yet, what that actually means in practice is subject to erosion.57 Next, I would like to refer to two key principles of international environmental law: the precautionary principle and public participation. The precautionary principle or in the words of the ILA the principle of the precautionary approach to human health, natural resources and ecosystems is often quoted in general terms, but also more concretely applied. There is an increasing emphasis on the duty of States to take preventive measures to protect the environment, for example through environmental impact assessment. The emergence of this ‘precautionary approach’ is also clearly reflected in Principles 15 and 19 of the Rio Declaration and multilateral treaty law, most notably in international fisheries law, international water law and physical planning. The Rio Declaration provides unequivocally: ‘Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation’. One of the novel features of the Rio Declaration was its call for public participation and access to information and justice, listed as principle 5 in the ILA Declaration. It coincides with the call 56 57

See UNCTAD (2007).

See Verwey (1998), pp. 48-67 and Brenton (2003).

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for more participatory processes in national and international decision-making and with the increased status of human rights. In international environmental law this has received a certain response, most notably in the Treaty of Arhus concluded in 1998 under the auspices of the UN Economic Commission for Europe, on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters. The emerging international law of sustainable development also embraces good governance, including democratic accountability. As discussed above, its exact definition may not be very clear in the parlance of politics and development studies. Yet, as a legal concept it has found a place in among other documents the EU-ACP cooperation treaties and in guidelines of both the World Bank and the IMF. The concept of good governance can well be instrumental in integrating the various dimensions of the concept of sustainable development, including global good governance in the sense of the participation of States in international law-making, conference diplomacy and decision-making within international institutions, participation of non-State entities in national and international decision-making and good national governance in the sense of application of general principles of a constitutional State.58 In the ILA Declaration it was decided to define the principle of good governance chiefly in a procedural sense. Four important elements are emphasised: • democratic and transparent decision-making and financial accountability; • combating corruption; • proper procedures and respect for the constitutional State and human rights; • public tenders in line with the WTO Code in this area. As with the precautionary principle, the ILA declares that the principle of good governance is also applicable to legal subjects other than States: ‘Non-state actors should be subject to internal democratic governance and to effective accountability’. In this regard, the Declaration calls upon the private sector to show socially responsible behaviour and to make socially responsible investments as conditions for the emergence of a world market that contributes to an honest distribution of wealth between and within societies. The last general principle with a prominent place in this effort is that of integration and interrelationship, in particular in relation to human rights and social, economic and environmental objectives. Here inspiration can be sought from various principles of the Stockholm and Rio Declarations, the World Charter for Nature, the IUCN Covenant, the Earth Charter as well as from important multilateral treaties such as the UN Convention on the Law of the Sea, the UN Climate Change Convention, the Biodiversity Convention, the Anti-desertification Convention, the Agreement on Migrating Fish Stocks and Article 11 of the Treaty on the Functioning of the European Union. 58

See Commission on Global Governance /1995); Sands (1994), pp. 303-381 at pp. 355-360.

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The integration principle is possibly the most important of all principles concerning sustainable development.59 As a relatively new principle, it recognises the interrelationship between the pursuit of poverty eradication and development, environmental protection and respect for human rights and the integrated manner in which the objectives in these areas are tackled. The ILA New Delhi Declaration emphasises that the integration principle brings to the fore the interrelationship of socio-economic, environmental and human rights issues as well as those relating to the needs of present and future generations. As with other principles, the Declaration emphasises that the integration principle is applicable to all sectors of (international) society and to all governmental levels, from local to global.



7 Concluding Observations

In this chapter we have been able to note that the Brundtland report and the Rio Conference have received quite an impressive legal follow-up, especially in international environmental law. We have also noted the fact that in recent years developmental concerns have been given relatively less weight in politics and international law, even to the extent that there has been a neglect of development in the evolution of international law in the field of sustainable development. However, we were also able to note that the international law of development is not a moribund relic of the past but still alive,60 albeit subject to considerable challenges due to dominant market-economy approaches and new directions as a result of emphasis on human rights, environmental conservation and good governance. Particular concerns are the continued conflicts of interests between developing and industrialized States and the question whether, and to what extent, developing States have discretion to determine their own developmental and environmental policies in an era of globalization. Our particular mission in this chapter was to contribute to the achievement of a balanced and comprehensive state of international law in the field of sustainable development, as called for in the Rio Declaration and in Agenda 21. We have been able to sketch the contours of an emerging new international law of sustainable development. Some of its cornerstones have a firmly established status, others are just emerging. The international community has committed itself to far-reaching goals, among others through the Millennium Declaration of the United Nations and the Seven Pledges to ban poverty and provide an adequate living standard for all by 2015 through the Millennium Development Goals. Here international law has a role to play, both as a value system consolidating an integrated approach to environment and development and as a concrete regulatory framework for co-operation between all relevant actors. 59

See on this Voigt (2006).

60

Cf. Slinn (1999), pp. 299-318.

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Bibliography Abi-Saab (1984) G. Abi-Saab, ‘Progressive Development of the Principles and Norms of International Law Relating to the New International Economic Order’, UNITAR Report, UN Doc. A/39/504/Add. 1, 1984.

Anghie (2005) A. Anghie, Imperialism, Sovereignty and the Making of International Law, Cambridge, Cambridge University Press, 2005.

Andreassen and Marks (2007) B.A. Andreassen and S.P. Marks, Development as a Human Right: Legal, Political, and Economic Dimensions, Harvard, Harvard University Press, 2007.

Arts (2000) K. Arts, Integrating Human Rights into Development Cooperation: the Case of the Lomé Convention, The Hague, 2000.

Babarinde and Faber (2005) O. Babarinde and Gerrit Faber (eds), The European Union and the Developing Countries. The Cotonou Agreement, Leiden: Nijhoff, 2005.

Birnie and Boyle (2002) P. Birnie and A. Boyle International law and the environment. Oxford, 2nd ed., 2002.

Boyle and Freestone (1999) A. Boyle and D. Freestone, ‘Introduction’, in ibid. (eds), International Law and Sustainable Development. Past Achievements and Future Challenges, Oxford, 1999.

Bradlow (2004) D.D. Bradlow, ‘Development Decision-Making and the Content of International Development Law’, 27 Boston College International and Comparative Law Review (2004).

Brenton (2003) P. Brenton, ‘Integrating the Least Developed Countries into the World Trading System: The Current Impact of European Union Preferences Under “Everything But Arms”’, (2003) 37 Journal of World Trade 623.

Brownlie (1999) I. Brownlie, Principles of Public International Law, Oxford, 5th ed., 1999.

Brownlie (2003) I. Brownlie, Principles of Public International Law, Oxford, 6th ed., 2003.

Brown Weiss (1989) E.D. Brown Weiss, In Fairness to Future Generations. International Law, Common Patrimony and Intergenerational Equity, New York, 1989.

Bulajic (1993) M. Bulajic, Principles of International Development Law, Dordrecht, 2nd ed., 1993. 244

chapter 2.3

development – the neglected dimension in the post-rio nternational law of sustainable development

Cheng (1965) B. Cheng, ‘United Nations Resolutions on Outer Space: “Instant” International Customary Law?’, in 5 Indian Journal of International Law (1965).

Chowdhurry, Denters and de Waart (1992) S.R. Chowdhury, H.M.G. Denters and P.J.I.M. de Waart (eds), The Right to Development in International Law, Dordrecht, Martinus Nijhoff, 1992.

Cordonier Segger and Khalfan (2004) M-C. Cordonier Segger and A. Khalfan, Sustainable development law: principles, practices, and prospects, Oxford et al., Oxford University Press, 2004.

Commission on Global Governance (1995) Commission on Global Governance, Our Global Neighbourhood, Oxford, 1995.

Fitzmaurice (2001) M.A. Fitzmaurice, ‘International protection of the environment’, Recueil des cours, 2001, Vol. 293.

Flory (1978) M. Flory, Droit international du développement, Paris, 1978.

Fomerand (1996) J. Fomerand, ‘UN Conferences: Media Events or Genuine Diplomacy?’, in 2 Global Governance (1996), pp. 361-375.

French (2005) D. French, International law and policy of sustainable development, Manchester et al., Manchester University Press, 2005.

French (2000) D. French, ‘Developing States and International Environmental Law. The Importance of Differentiated Obligations’, in 49 International and Comparative Law Quarterly (2000).

Gillespie (2001) A.Gillespie, The Illusion of Progress. Unsustainable Development in International Law and Policy, London, 2001.

McGoldrick (1996) D. McGoldrick, ‘Sustainable Development and Human Rights: an Integrated Conception’, in 45 International and Comparative Law Quarterly (1996).

Goudzewaard and de Lange (1995) B. Goudzwaard and H.M. de Lange, Beyond Poverty and Affluence. Toward an Economy of Care, Geneva, 1995.

Grub et al. (1995) M. Grub et al., The Earth Summit Agreements: A Guide and Agreement, London, 1993.

245

sustainable development in international and national law

Jenning and Watts (1996) R. Jennings and A. Watts (eds), Oppenheim’s International Law, vol 1 (PEACE), 9th ed., 1996.

Kaltenborn (1998) M. Kaltenborn, Entwicklungsvölkerrecht und Neugestaltung der internationale Ordnung. Rechtstheoretische and rechtspolitische Aspekte des Nord-Süd-Konflikts, Berlin, 1998.

Lowe (1999) V. Lowe, ‘Sustainable Development and Unsustainable Arguments’, in A. Boyle and D. Freestone (eds) International Law and Sustainable Development. Past Achievements and Future Challenges, Oxford, 1999.

Meagher( 1979) C.F. Meagher, An International Redistribution of Wealth and Power. The Charter of Economic Rights and Duties of States, New York, 1979.

Munro and Lammers (1987) R.D. Munro and J.G. Lammers, Environmental Protection and Sustainable Development: Legal Principles and Recommendations, London, 1987.

Opschoor (1987) J.B. Opschoor, Duurzaamheid en verandering: ecologische inpasbaarheid van economische ontwikkeling, inaugural lecture, Vrije Universiteit, Amsterdam, 1987.

Pallmaerts (1993) M. Pallemaerts, ‘International Environmental Law from Stockholm to Rio: Back to the Future?’, in P. Sands (ed.), Greening International Law, London, 1993.

Pellet (1978) A. Pellet, Le droit international du développement, Paris, 1978.

Pinto (1998) M.C.W. Pinto, ‘The Legal Context: Concept, Principles, Standards and Institutions’, in F. Weiss, E. Denters and P. de Waart (eds), International Economic Law with a Human Face, The Hague, 1998.

Porras (1993) I. Porras, ‘The Rio Declaration: A New Basis for International Cooperation’, in P. Sands (ed.), Greening International Law, London, 1993.

Redgwell (1999) C. Redgwell, Intergenerational Trusts and Environmental Protection, Manchester, 1999.

Reid (1995) D. Reid, Sustainable Development. An Introductory Guide. London, 1995.

Sands (1994) P. Sands, ‘International Law in the field of Sustainable Development’, in 65 British Year Book of International Law (1994). 246

chapter 2.3

development – the neglected dimension in the post-rio nternational law of sustainable development

Sands (1999a) P. Sands, ‘Environmental Protection in the Twentieth Century: Sustainable Development and International Law’, in N.J. Vig and R.S. Axelrod (eds), The Global Environment. Institutions, Law and Policy, Washington D.C., 1999.

Sands (1999b) P. Sands, ‘International Courts and the Application of the Concept of Sustainable Development’, in 3 Max Planck UNYB (1999).

Sands (2003) P. Sands, Principles of International Environmental Law, Cambridge, 2nd ed., 2003.

Schrijver (1988) N.J. Schrijver, ‘International Organization for the Management of Interdependence. Alternative Ideas in Pursuit of Global Decisionmaking’, in 19 Bulletin of Peace Proposals (1988), republished in Glenn Hastedt (ed.), One World, Many Voices. Global Perspectives on Political Issues, Prentice Hall, Englewood Cliffs, N.J., 1995.

Schrijver (1997) N.J. Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties, Cambridge, 1997 (paperback re-issue 2008).

Schrijver (1988) N.J. Schrijver, ‘International Organization for the Management of Interdependence. Alternative Ideas in Pursuit of Global Decisionmaking’, in 19 Bulletin of Peace Proposals (1988), republished in Glenn Hastedt (ed.), One World, Many Voices. Global Perspectives on Political Issues, Prentice Hall, Englewood Cliffs, N.J., 1995.

Schrijver (1999) N.J. Schrijver, ‘The Changing Nature of State Sovereignty’, in 70 British Year Book of International Law (1999), Oxford.

Schrijver (2001) N.J. Schrijver, ‘A Multilateral Investment Agreement from a NorthSouth Perspective’, in E. C. Nieuwenhuys and M.M.T.A. Brus (eds), Multilateral Regulation of Investment, The Hague, 2001.

Schrijver and Weiss (2004) N.J. Schrijver and F. Weiss (eds), International law and sustainable development: principles and practice, Leiden et al., Nijhoff, 2004.

Schrijver (2007) N.J. Schrijver, ‘Natural Resource Management and Sustainable Development’, in T. G. Weiss and S. Daws (eds), The Oxford handbook on the United Nations, Oxford, Oxford University Press, 2007.

Seidman, Seidman and Wälde (1999) A. Seidman, R.B. Seidman and T.W. Wälde (eds), Making development work: legislative reform for institutional transformation and good governance, The Hague, Kluwer Law International (1999).

247

sustainable development in international and national law

Slinn (1999) P. Slinn, ‘The International Law of Development: A Millennium Subject or a Relic of the Twentieth Century?’, in W. Benedek, H. Isak and R. Kicker (eds), Development and Developing International and European Law, Frankfurt am Main, 1999.

Tinbergen (1976) J. Tinbergen (coord.) Reshaping the International Order: A Report to the Club of Rome, Amsterdam, 1976.

UNCTAD (2007) UNCTAD, The Least Developed Countries Report 2007, United Nations, Geneva, 2007.

VerLoren van Themaat (1981) P. VerLoren van Themaat, The Changing Structure of International Economic Law, Dordrecht, 1981.

Verwey (1981) W.D. Verwey, ‘ The Establishment of a New International Economic Order and the Realization if the Right to Development and Welfare: A Legal Survey”, in Indian Journal of International Law, vol. 21 (1981).

Verwey (1998) W.D. Verwey, ‘Preferential Treatment of Developing Countries in International Trade Law after the Uruguay Round’, in H.M.G. Denters and N.J. Schrijver, Reflections on International Law from the Low Countries (in honour of Paul de Waart), The Hague, 1998.

Voigt (2006) C. Voigt, Sustainable Development as a Principle of Integration in International Law, Ph-D Thesis, University of Oslo, 2006.

World Commission on Environment and Development (1987) World Commission on Environment and Development, Our Common Future, Oxford, 1987.

World Commission on the Oceans (1998) World Commission on the Oceans, The Oceans……our Future, Cambridge, 1998.

Weiss (2000) T.G. Weiss, ‘Governance, good governance and global governance: conceptual and actual challenges’, (2000) 21 Third World Quarterly 795 .

Weiss (1999) F. Weiss, ‘Fishmeal of Bananas’, in W. Benedek, H. Isak and R. Kicker (eds), Development and Developing International and European Law, Frankfurt am Main, 1999.

Weiss, Denters and de Waart (1998) F. Weiss, E. Denters and P. de Waart, International Economic Law with a Human Face, The Hague, 1998.

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The Principle of Common but Differentiated Responsibilities as Contributing to Sustainable Development through Multilateral Environmental Agreements Tuula Kolari

chapter 2.4



the principle of common but differentiated responsibilities

1 Introduction

The principle of common but differentiated responsibilities (CBDR) as applied to international environmental treaties denotes that all states should participate in the efforts to tackle environmental problems, but the commitments may be differentiated to take into account the different characteristics and situations of states. The notion of sustainable development, then, requires that development should meet the needs of the present without compromising the ability of future generations to meet their own needs. Concerns for environment and inter- and intragenerational equity seem central to both international environmental protection and sustainable development initiatives and efforts. Although historical responsibility is often invoked in the negotiations on burden-sharing, considerations of future state of affairs and equity are always present. The requirements of sustainable development and intergenerational equity seem, therefore, to be in line with, or even require the application of, the CBDR principle in global environmental affairs. It is the argument of the present paper that the two principles, of sustainable development and of common but differentiated responsibilities, are in essence compatible with each other. Indeed, it can be said that one of the main aims of the CBDR principle as applied in multilateral environmental agreements (MEAs) is to achieve sustainable development, both in industrial and developing countries and in the broader North–South relations.



2 The Essence of the Principle of Common But Differentiated Responsibilities

In general, state relations and cooperation are based on sovereign or judicial equality. This includes, inter alia, the principle of reciprocity and similar rights and obligations for states. Increasingly often, however, this is perceived as leading to substantively unjust outcomes, and differentiation based on some agreed criteria is needed. The principle of common but differential responsibilities is being invoked increasingly often in negotiations on international environmental treaties. Since the 1992 Rio Declaration, where the principle was most prominently defined * 

Tuula Kolari is phd student at the University of Joensuu, Finland.

See UNGA Res. 2625: Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations (1970).



Most notably in Principle 6: ‘The special situation and needs of developing countries, particularly the least developed and those most environmentally vulnerable, shall be given special priority. International actions in the field of environment and development should also address the interests and needs of all countries.’ and Principle 7: ‘States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of the different contributions to

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and brought forward at the international level, some degree of differentiation in state obligations has been included in most multilateral environmental agreements. The principle enjoys increased recognition in the North while related awareness and bargaining power in developing countries has been on the rise as well. The principle of common but differentiated responsibilities as applied to international environmental treaties has two elements: it entitles, or possibly requires, all concerned states to participate in international response measures aimed at addressing environmental problems. Furthermore, it leads to the adoption and implementation of different commitments for states, taking into account their diverse situations, circumstances and capacities, their historical contribution to a problem as well as their future development needs. The CBDR principle has two main forms by which it is realized: allocation of rights and redistribution of resources. Differentiation implies varied obligations for states in the international environmental cooperation, and also entitles less developed countries to assistance in the implementation of their commitments. Consequently, differential treatment does not only seek to achieve justice and substantive equity but also more effective implementation of international environmental agreements. By differentiation states are induced to participate in treaty arrangements and to maintain the cooperation. Differential treatment applies mechanisms and allows for deviations from general state obligations to favor least favored countries, usually, but not exclusively, equated with developing countries. First of all, the principle of common but differentiated responsibilities can be realized by concretely giving participating states different obligations. Treaty commitments may be formulated as less demanding for a certain group of parties (or even excluding them completely from binding obligations to take action); states may be granted longer implementation periods with their commitments; exceptions and reservations may be used; or a treaty may create specific mechanisms to account for the different national situations in the participating countries. Redistribution of resources is another way of differentiating between countries within international environmental agreements. It is based on assistance that is given to less developed or especially vulnerable states with an aim to alter global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.’ 

This paper uses, perhaps quite simplistically, the division between industrial and developing countries in the analysis. The author recognizes that the division is over-generalized but uses it while lacking a better way to discuss the current issue on a general level. Moreover, the North-South divide is quite visible and frequently referred to in the multilateral negotiation positions of countries especially in the environmental and developmental fields.

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incentives and build capacity to promote environmental concern and to take action. Resource redistribution can mainly be realized by allocation of financial assistance and transfer of technology. Such measures help gain support for an international regime and contribute to its environmental effectiveness. The principle of common but differentiated responsibilities is in some form reflected in practically all modern international environmental treaties. The most notable are perhaps the Montreal Ozone Protocol and the global climate change regime. The former grants developing countries a grace period of ten years to reduce their CFC usage (Art. 5). Furthermore, the Protocol facilitates access to technology and financial transfers, which enables the developing world to use alternative methods and substitute products more easily. The Montreal Protocol Multilateral Fund was created as a primary financial mechanism for the regime. The UN Climate Change Convention calls parties to protect the climate system ‘on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities’ (Art. 3). The principle is operationalized in the subsequent Kyoto Protocol in terms of both differential commitments and resource redistribution. As to the emissions reduction targets, the Protocol makes a distinction between industrial and developing countries, the former have binding emissions reduction obligations, the latter not. A further division is made between Annex I countries that have been given different commitments.  The Kyoto mechanisms, Joint Implementation, Clean Development Mechanism and Emissions Trading, can also be regarded as forms of differential treatment. Financial assistance is provided through the Global Environment Facility (GEF), which funds projects under several other multilateral environmental treaties as well, though the climate change regime has designed funding mechanisms of its own, too. In addition, the transfer of climate-friendly technology is to be promoted under the regime. Although the CBDR principle is nowadays commonly invoked and applied in the negotiations on multilateral environmental agreements, it usually comes with some serious problems and difficulties for parties. Perhaps most importantly, it must be acknowledged that the principle does not have a strictly fixed content or clear legal status; it is plagued with controversies. Related to this, states tend to emphasize different elements of the CBDR principle and use the principle to suit their own (often self-interested) purposes. In any case, the principle of common but differentiated responsibilities seeks to respond to concerns over the legitimacy, equity and effectiveness of international environmental regimes. It has the function of trying to reconcile 

Still further differentiation is made as the European Union as a party to the agreement performs an internal burden-sharing of the commitment inside the so-called ‘EU bubble’.



Open questions include, for instance, whether the CBDR principle is only morally binding on states; to what extent it allows developing countries to be exempted from strict limitations on their emissions; and on which basis countries are categorized for differential treatment.

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the tension between the need for universalism in taking action to combat global environmental problems, and the need to be sensitive to individual countries’ relevant circumstances.



3 The Concept of Sustainable Development in Brief

The most famous and widely utilized definition of sustainable development dates from 1987, from the final report of the World Commission on Environment and Development (Brundtland Commission). The report built the concept of sustainable development on the notion of inter-generational equity and on the three pillars of sustainability: economic, social and environmental. Interestingly, the Brundtland Report specifically underlined ‘the urgent need to recognize and respect the reciprocal responsibilities of individuals and States regarding sustainable development.’ This approach seems to stress the common responsibility of actors; differentiation was not an issue within this context. However, the Report laid great emphasis on intra- and intergenerational equity (essentially that one generation should not deprive future generations of their abilities to meet their own needs), which indirectly gives some leeway for less developed countries to develop their societies, yet in a generally sustainable manner. The concept of sustainable development bears many similarities with the principle of common but differentiated responsibilities, if not even encompassing the principle as such within itself. The policy status of sustainable development is also rather vague; it is more akin to a political slogan and catchphrase than a rule that concretely confers actors rights and responsibilities. The concept consists of different, maybe competitive, elements. In fact, it may be thought that the notion of sustainable development in a way provides something for everyone, which gives it acceptability, but differences in approaches and aims are bound to persist among countries. The same applies largely to the CBDR as well. Consequently, the practical implications of the concepts may be of greatly varying kind. Tensions are often seen between the different elements of the concept of sustainability, and between sustainable development and other approaches to the development of the international society. Environmental protection is frequently seen as hindering the economic growth and sustainability of countries. However, it could also be said that the whole subject of international law of sustainable development is as concerned with economic development as with protecting the environment. It is clear that there is a link between countries’  

WCED (1987).

Ibid.



See e.g. Drumbl (2002) 845. It can fairly be said that the notion of sustainable development places the preservation of the environment as part of the general developmental process.

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(economic) development and severe environmental problems. At the same time, environment and development goals cannot be separated, and it is indeed possible to make them compatible. This could possibly be achieved though the third main element of the concept of sustainable development, social sustainability, which can be seen as comprising the general welfare of people and society and being linked to different conceptions of justice.



4 International Developments with the Concepts

The origins of the principle of common but differentiated responsibilities, and perhaps less obviously of the notion of sustainable development, can be traced back to the 1960s and 1970s when developing countries made heard their concerns in the area of international law of development, especially in connection with the proposed New International Economic Order (NIEO). In short, the South demanded more equitable sharing of the resources and wealth of the world, i.e. fairer rules to international (development) law. Developing countries had been advocating a ‘right to development’ for themselves for quite a long time, and it may have seemed in the late 1980s that their voices were finally starting to be heard. However, the issue in general is very difficult, and the concepts of sustainable development or CBDR cannot be expected to solve the problematics. Discussion on states’ right to (usually economic rather than sustainable) development can be regarded as having started in earnest at the international level with the NIEO movement in 1960s. Interestingly, the International Development Strategy for the Second United Nations Development Decade, adopted in 1970, stipulated countries’ economic and social progress as the ‘common and shared responsibility of the entire international community’.10 This is an interesting formulation and demonstrates the great emphasis that was put at the time on states’ pursuit of economic development. The common and shared responsibility was to be realized in the context through increased financial resources and more favorable economic and commercial policies on the part of the developed countries.11 The ideas and concepts laid down in the 1970 International Development Strategy can well be seen as one of the predecessors for the CBDR adopted later in the international environmental context. The NIEO movement failed to create a new world order, but the seeds were planted for the future. The notion of sustainable development emerged to broader public awareness in 1987, the same year as the Montreal Ozone Proto

Rajamani presents international law for development as a basis for the NIEO movement and the CBDR later on. See Rajamani (2006) 14-17. See also Flory (1982).

10

UNGA Res. 2626: International Development Strategy for the Second United Nations Development Decade (1970), para. 10.

11

Ibid. para. 11.

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col, laying down the first concrete applications of the CBDR principle, was signed. Within the United Nations, the 1972 Conference on Human Environment had made some cautious references to countries’ development needs and the issue of differentiation by underlining the need to consider ‘the applicability of standards which are valid for the most advanced countries but which may be inappropriate and of unwarranted social cost for the developing countries.’12 The 1987 Brundtland Report was the cornerstone in the development of the concept of sustainable development, but it can also be seen as having laid the foundation for the principle of common but differentiated responsibilities. In general, the Report emphasized equity and justice among actors, people and states, in the promotion of sustainable development and global environmental protection. The following statement, made in the context of climate change, is illustrative: ‘Globally, wealthier nations are better placed financially and technologically to cope with the effects of possible climatic change. Hence, our ability to promote the common interest in sustainable development is often a product of the relative neglect of economic and social justice within and among nations.’13

The Report called wealthier states to bear responsibility and act according to their capacity, and to assist developing countries to build their respective capacity to enable them to develop in accordance with the principles of sustainable development.14 It was not until the Rio Summit in 1992 that both the concept of sustainable development and common but differentiated responsibilities were formally adopted as principles of environment and development. Most importantly in the present context, Principle 7 of the Rio Declaration (stating the CBDR principle) attached the responsibilities of developed countries specifically to the ‘international pursuit of sustainable development.’ In addition, it was stated in the Climate Change Convention that the balance of commitments in the Convention requires (and should allow) developing countries to develop in a sustainable manner.15 It has been argued that the Rio Summit marked a paradigm shift from international environmental law to international law on sustainable devel-

12

The Stockholm Declaration, Report of the United Nations Conference on the Human Environment, A/CONF/48/14/Rev.1 (1972), Principle 23.

13

WCED (1987) p. 49.

14

For instance, the creation of the Global Environment Facility, an important institution in realizing CBDR, can be regarded as a response to the recommendation made by the Brundtland Commission. The final Report stated that mechanisms should be established to finance investments in conservation projects and national strategies to help developing countries through the necessary transition to sustainable development. WCED (1987) p. 336.

15

Art. 3(4): ‘The Parties have a right to, and should, promote sustainable development.’

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opment.16 It is certainly true that the Conference brought the concept of sustainable development to the forefront in international (environmental) cooperation. At the 2002 World Summit on Sustainable Development (WSSD), the emphasis was manifestly on sustainable development and environment was left with a supporting role. Nevertheless, the principle of common but differentiated responsibilities was elevated to the discussions and strongly linked to the program for the promotion of sustainable development. Importantly, the Plan of Implementation of the Summit mentioned differentiation as a guiding principle in efforts relating to the enhancement of international cooperation on sustainable development.17 In general, developments in recent years have showed a slight shift in emphasis in the international sustainable development dialogue from environmental protection to social and economic development. Within this context at the WSSD, developing countries wanted to complement this trend by making Rio Principle 7, manifesting CBDR, the basis for international action with respect to all three pillars of sustainable development.18 Developed countries had a mixed attitude to the issue. On one hand, they expressed conceptual sympathy with the CBDR principle in general and were willing to acknowledge, in part, their differential responsibility in the environmental field. On the other hand, developed countries questioned the language that appeared to give preeminence to the CBDR principle over the other Rio principles in the international policymaking regarding sustainable development. Moreover, developed countries were reluctant to extend such acknowledgement to fields they perceived as exclusively pertaining to social and economic development.19 In short, it was felt that the scope of the common but differentiated responsibilities should be narrower than that of sustainable development. In the end, the governments agreed to undertake ‘concrete actions and measures at all levels and to enhancing international cooperation, taking into account the Rio Principles, including the principle of common but differentiated responsibilities as set out in Principle 7 of the Rio Declaration on Environment and Development.-- These efforts will also promote the integration of the three components of sustainable development – economic development, social development and environmental protection – as interdependent and mutually reinforcing pillars.’20 16 17

Rajamani (2006) 59.

Plan of Implementation of the World Summit on Sustainable Development, A/CONF.199/20 (2002), Chapter I.2 para. 39.

18

Rajamani (2006) 69.

19

Ibid.

20

Plan of Implementation para. 2. The term ‘concrete action and measures’ refers also to international treaties where specific sustainable development obligations and measures are being developed and financed. See Cordonier Segger et al. (2003) 58.

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It has been assessed that the outcome of the WSSD with regard to sustainable development and the principle of common but differentiated responsibilities would mean that the principle of CBDR is not only applicable when international environmental problems are addressed, as is explicitly done today, but the door has been left open to the application of the principle in decision-making on social and economic issues such as the human rights, labor and trade regimes, at least when sustainable development concerns arise.21 The Johannesburg Summit outcome was a compromise the significance of which will be seen in the coming years. The Conference sought to include the principle of CBDR into wider international, both environmental and developmental, cooperation. The principle of common but differentiated responsibility is doing its best in trying to accommodate the sentiments of both developed and developing countries to a balanced view of global sustainable development. As a little anecdote, it is interesting that the International Law Association’s Declaration on the Principles of International Law Relating to Sustainable Development, dating from 2002, has included the principle of common but differentiated responsibilities as one of the seven leading principles of sustainable development law.22

21

Ibid. 60. Indeed, the doctrine of Special and Differential Treatment (SDT) within the World Trade Organization has been operative for decades already and could be seen as an application of the CBDR principle within the international trade regime.

22

ILA New Delhi Declaration on the Principles of International Law Relating to Sustainable Development 2002, reprinted in 2 International Environmental Agreements: Politics, Law and Economics (2002) 209-216. The Declaration is not, arguably, even a soft law instrument of international environmental and development law but merely a result of years of joint scholarship and investigation by experts. Schrijver (2005) 551. The Declaration states in Principle 4: ‘States and other relevant actor have common but differentiated responsibilities. All states are under a duty to co-operate in the achievement of global sustainable development and the protection of the environment.-- Differentiation of responsibilities, whilst principally based on the contribution that a State has made to the emergence of environmental problems, must also take into account the economic and developmental situation of the State-- The special needs and interests of developing countries and of countries with economies in transition, with particular regard to least developed countries and those affected adversely by environmental, social and developmental considerations, should be recognized. Developed countries bear a special burden of responsibility in reducing and eliminating unsustainable patterns of production and consumption and in contributing to capacity-building in developing countries, inter alia by providing financial assistance and access to environmentally sound technology. In particular, developed countries should play a leading role and assume primary responsibility in matters of relevance to sustainable development.’

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5 CBDR and Sustainable Development Reinforce and Require the Application of Each Other

It should be clear by now that the principle of common but differentiated responsibilities has essential links with the concept of sustainable development. In essence, the dimensions of sustainable development are very much present in the concept of CBDR and vice versa. For instance, the definition of sustainable development may be seen as being about prioritizing needs among the economic, social and environmental spheres. The principle of common but differentiated responsibilities has to deal with these same struggles. Actually, it could be thought that the CBDR principle assists for its own part, if realized in a reasonable manner, in the implementation of sustainable development at the international, and also at regional and local levels. It can be said that common but differentiated responsibilities assists all states to proceed towards sustainable development that comprises all three aspects: economic, social and environmental sustainability. Firstly, general economic sustainability is promoted by cost-effective strategies for environmental protection that are based on non-universal commitments.23 Furthermore, economic sustainability is enhanced at the country level as the application of CBDR should ensure that the economic development prospects of (developing) countries are not destroyed by sudden strict emissions reduction obligations, for instance. On the other hand, it is important to recognize the bases on which obligations are differentiated. Not all solutions promote economic sustainability, and it should be remembered that the cost-effectiveness or economic sustainability of a state is not the sole goal of the CBDR anyway. Secondly, common but differentiated responsibilities is compatible with or may actually promote the social dimension of sustainable development. In taking into account the different situations and circumstances of the parties, the CBDR supports justice and (sense of) equity in the burden-sharing of international environmental and developmental cooperation. Developing countries are adamant in positing that environmental concerns should not override such issues as the efforts for poverty eradication or realization of the right to development.24 However, sometimes the promotion of equity at the inter-state level may lead to social unsustainability on the ground in individual countries. For example, the fact that a poor developing country is not required in a multilateral envi23

In general, strict uniformity in obligations is not a good solution from a regulatory point of view because it ignores the marginal costs of taking action.

24

Numerous developing countries have argued that development, by which they usually mean economic development and industrialization, is more important to the well-being of their people than a fastidious concern for the environment. See e.g. Franck (1995) 368. It has been argued that in the late 1980s the Third World attitude towards the global environmental debate appeared to be dominated by distrust. The most extreme positions held that industrial countries had found another excuse for impeding the development of poor countries. Piddington (1989) 35.

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ronmental agreement to control certain emissions may result in serious local or regional environmental problems from which both the local human population and the environment suffer unreasonably. Nevertheless, it is not reasonable to claim that there is a general and persistent conflict with the CBDR principle and social sustainability. Finally, environmental sustainability is enhanced by the common responsibility element of the CBDR that is meant to eventually bring all states under an obligation to restrict their environmentally destructive behavior. The gradual strengthening of the commitments and participation of developing countries in multilateral environmental treaties promote environmental effectiveness and sustainability compared to a situation where no inducement or allowance is provided for less developed countries. Differentiation applied in the treaty obligations is a concrete way to ease the path of international environmental regulation for developing countries. States are further induced to join regimes where they perceive that justice is advanced via rules that take the special circumstances of countries into account. It could simply be assumed that the more widely participated a regime, the better for environmental sustainability. It is true that a higher participation rate is probably achieved and the lowest common denominator negotiation outcome is perhaps avoided thanks to the application of common but differentiated responsibilities. However, it could be asked whether differentiation will, overall, make a regime less ambitious and, consequently, decrease the achievable level of environmental sustainability.25 In principle, the same could apply in a domestic context. The question to be asked is whether exceptions and concessions granted in MEAs on the basis of common but differentiated responsibilities are going too far toward encouraging unsustainable development, e.g. by causing serious harm to local communities, in less developed countries. There would seem to be at least a potential for such cases because many poor countries are not likely to broadly introduce meaningful environmental regulation in the absence of an external push or help for that. However, the CBDR cannot directly be accused of the possibly low level of environmental regulation in developing countries as there are a variety of factors influencing the situation. Nor could it be argued in the case of many global environmental problems that the issue of local unsustainability may not be so severe after all. This is because the harmful environmental effects are not experienced at any particular locality alone: the effects of environmental degradation can be felt everywhere on the globe (e.g. the case of 25

When a group of states is given lower obligations than others, the state of the global environment is naturally improved less than in a situation of strong and effective uniform efforts. It must be acknowledged that grace periods, exemptions etc., however badly and legitimately they may be needed in multilateral environmental agreements, directly run against the environmental objectives of treaties and undermine their environmental sustainability. Moreover, the political effectiveness of the treaties may be indirectly threatened as well if the idea of CBDR is disapproved of by some states that consequently prefer to stay outside of such a regime.

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climate change). Nevertheless, many so-called global problems can still cause serious damage to the environmental and social conditions of local, most often the poorest, people in societies. Biodiversity loss and desertification are two such problems; both are actually issues that are sometimes criticized for not really being global problems and therefore worth a global treaty. The problem of local unsustainability as a result of differentiation in multilateral environmental agreements was discussed earlier in this chapter. The elements of sustainable development are very much interdependent as the relationship between poverty, environmental degradation and economic development is truly intertwined. Common but differentiated responsibilities shares this feature. It is important to recognize that uniform commitments in multilateral environmental treaties involve the risk that too much weight is given to some individual element of sustainable development. For instance, strict across-the-board emissions reduction obligations place the focus of a regime on pure environmental sustainability, which sidelines the economic and social aspects of sustainable development. I would argue that the application of the CBDR principle ensures a more balanced setting. Over-emphasis on the economic aspect is avoided by the mere idea of differentiated commitments which should ensure that the environmental commitments of countries would not be too strict so as to prohibit (reasonable) economic development within a country. In the same vein, the CBDR seeks to promote equity and justice among states, and possibly also at the level of citizens. Finally, common responsibility aims at global participation in environmental action, and also tries to ensure that developing countries cannot entirely focus on economic development at the cost of the environment or inter-state equity. However, in all these aspects the actual criteria for burden-sharing and participation in agreements are crucial. Intergenerational equity is an integral element of the concept of sustainable development, and it is also promoted by the principle of common but differentiated responsibilities. Indeed, CBDR is largely about solidarity: towards less well-off states on one hand, and towards future generations and the future state of the global environment on the other. The requirements of intergenerational equity seem, therefore, to be in line with, or even require the application of, the CBDR principle. What may hinder the realization of sustainable development in multilateral environmental agreements are the different interests and motives that states often have for the application of common but differentiated responsibilities. Industrial countries are frequently possessed by international competitiveness concerns which make them demand meaningful participation from the developing world in global environmental efforts; developing countries, for their part, often seek compensation for past wrongs and recognition of their fewer resources for environmental protection measures. It is the reality that the promotion of sustainable development is not always in states’ minds when MEAs are negotiated; instead, the notion of CBDR is used for countries’ own

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purposes: developing countries emphasize their right to (economic) growth and development, developed countries stress their acquired position and the need for truly global environmental protection. Furthermore, vulnerability to harmful environmental effects is more or less a motive behind all states’ perceptions of the need to have effective international environmental cooperation, but at present it is maybe more visibly behind industrial countries’ felt urgency to take action and their willingness to apply common but differentiated responsibilities. In fact, the development so far has been interpreted to indicate that differentiation has only been successfully implemented where the North has also found an interest in its application.26 It could be said that the CBDR is often made possible or required by states’ heterogeneous environmental valuations, or at least by their different emphases in the field of environment and development. In essence, emphasis is put on different elements of sustainable development. Common but differentiated responsibilities may be used to bring these different perceptions and settings in countries closer to each other. In short, the principle of common but differentiated responsibilities implies that everyone bears some responsibility for coping with large-scale environmental problems with a recognition of the fact that some members of international society have historically contributed to the environmental problems more than others and/or are much better situated than others to provide the resources needed to address these problems. However, it is important to recognize that differentiation does not imply additional obligations for developed states ad infinitum. Developing countries are expected to increase and deepen their level of participation in the efforts as their contribution to the problems and capacity to take measures grow. This idea should, in general, be in line with the principle of sustainable development. Common but differentiated responsibilities and sustainable development serve as justifications for each other, which makes them both very important; better acceptability and practical value are thereby brought into multilateral environmental treaty regimes.



6 Concluding Remarks and Future Outlook

Perhaps the most troubling issue with the principle of common but differentiated responsibilities is its legal and policy status. CBDR has developed rather rapidly during the last 15 or so years, and there is a somewhat consistent practice in its application in international environmental agreements since the 1987 Montreal Protocol. Being thus increasingly commonly adopted and applied, it could be asked whether the principle is developing into a customary norm of international environmental law, and what implications such a transformation might have.

26

Cullet (2003) 182.

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Common but differentiated responsibilities is now often an inseparable part of new international environmental treaty negotiations. Nevertheless, the used language tends to remain somewhat vague or more akin to soft law (e.g. declarations in treaty preambles). On the other hand, the practical applications of the CBDR have largely been adopted in a binding form, e.g. as differentiated emissions reduction targets and financial mechanisms. In those cases there is no question about the impact and force of the principle. The views about CBDR as a principle of customary law in the international environmental field are divided.27 Moreover, negotiating parties may well have different views about the status of the CBDR which are subsequently reflected in the treaty-making. Developed countries often regard the principle as based on ad hoc arrangements at the international level whereas developing countries are more eager to give differentiation the status of customary international law. Given the prospect, especially cherished by developing countries, of the CBDR maybe developing into a customary law principle, it is interesting to examine the role and position of the principle of sustainable development within this setting. How exactly do the two principles relate to each other? Is sustainable development the (explicit/implicit) fundamental aim of the CBDR? Or is it merely a ‘by-product’ that is (hopefully) generated when common but differentiated responsibilities is being applied in international environmental cooperation? A sceptic might respond that the both concepts just happen to share same elements and (partial) objectives. On the other hand, the possibility for competition between the constitutive elements, both within and between the principles, keeps them in a state of continuous change. Consequently, one might ponder whether some kind of conscious ‘harmonization’ between the two concepts would be in order. However, that could probably happen only with time and through consistent practice. The principle of common but differentiated responsibilities is certainly contributing to the achievement of sustainable development through multilateral environmental agreements. In a way, the CBDR is helping MEAs to be more sustainable development friendly. It ensures that concern for environmental and social (and economic) aspects gets a proper name and a policy or strategy of its own instead of only being an obscure negotiation point when international environmental cooperation is being prepared. It may be pretentious to say that the CBDR is a strategy to globally reach sustainable development, but the principle is certainly contributing towards that end, at least in the areas that are covered 27

For instance Harris posits that the principle has moved from being a soft international legal principle to ‘a nascent but increasingly robust component of international law’, as demonstrated by its codification in the Global Climate Change Convention. Harris (2000) 237. For views that CBDR is not a principle of customary law, see e.g. Stone (2004) 299 and Rajamani (2000) 124. See also Verwey for an interesting discussion on whether preferential treatment establishes ‘rights’ or ‘expectations’. Verwey (1983) 354356. All in all, it is probably too early to classify CBDR as a customary principle of international environmental law.

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by the relevant MEAs and to the extent that states are parties to them. The more precise application and criteria of common but differentiated responsibilities determine how much it generally contributes to sustainable development; multiple criteria for burden-sharing are needed to ensure that all elements of sustainability get a fair share of attention. It should be remembered that the maintenance or achievement of environmental sustainability in general requires long time frames while the social and economic aspects may be more immediate for their implications. For the principle of common but differentiated responsibilities to reach its objectives of effectiveness (however defined), it is crucial that it is made operational in an appropriate manner and that its practical application is guaranteed. Interestingly with regard to those ends, there was a proposal at the 2002 World Summit for Sustainable Development that the UN Commission on Sustainable Development would consider modalities to operationalize the CBDR principle so as to enhance the capabilities of developing countries to implement Agenda 21 and the outcomes of the WSSD.28 More generally, one objective of the Summit was to concentrate on inter-sectoral issues in the area of sustainable development. It has been argued that, within this context, the principle of CBDR should be used to interpret, and strengthen, other corresponding principles of sustainable development law in situations of overlap or conflict between social, economic and environmental regimes.29 This is a very challenging task. It is not clear how the suggested balancing would succeed given that the environmental, social and economic rationales behind the CBDR principle are not much better coordinated than under the concept of sustainable development. It can be expected that the CBDR principle, even if internationally strengthened, will not be able to resolve the problems and conflict situations. CBDR should not be thought of as a panacea to the problematics caused by the principle of sustainable development in multilateral environmental cooperation. Common but differentiated responsibilities could, however, possibly and as suggested, work as an overarching principle for more concrete principles of sustainable development law. This line of thought has been chosen by one commentator, stating that in the field of sustainable development, international law-making that does not give consideration to the CBDR principle, or interpretation and application of conventions that do not take this principle into account, could not claim legitimacy.30 So far, however, there has not been concerted action to develop guidelines or otherwise to try, in a joint manner, to ensure the effective application and implementation of the CBDR. In general, it can be thought that giving effect to the regime-specific differentiation mechanisms 28

Draft Plan of Implementation of the World Summit on Sustainable Development, Fourth Preparatory Commission Meeting (7 June 2002), A/CONF.199/PC/L.5/Rev.1 (2002) para. 138(c). No agreement was reached on this issue, however.

29 30

Cordonier Segger et al. (2003) 61.

Matsui (2002) 167.

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and meeting the commitments of financial aid are the simple building blocks to effective CBDR. Continuing with the thought of the relationship between common but differentiated responsibility and sustainable development, the general concept of sustainable development, then, must be seen as an overarching framework for the whole area of international environmental policies. Within this theory, the CBDR may be seen as a way to operationalize sustainable development (mainly at the international level between states’ commitments). Sustainable development is maybe still a more abstract concept than common but differentiated responsibilities; CBDR can perhaps be more easily concretely modified and thus made a helpful tool for policy-makers. Philippe Cullet has aptly pointed out that ‘[t]he realization of environmental quality cannot be sought in isolation from the socio-economic elements which constitute the backbone of equity in general international law. Equity and its environmental offshoot, the CBDR principle, imply therefore that environment and development goals must be pursued at the same time.’31

From this perspective, states’ right to development should not be too heavily restricted under international environmental regimes. The principle of common but differentiated responsibilities should be used to promote sustainable development as one of its aims. Common but differentiated responsibilities has the key function that it induces all states towards sustainable development, yet at a different pace. Industrial countries are to take the lead but the gradually more stringent differentiated commitments of the developing world are ensuring that they are following suit and assisting in the global achievement of sustainable development. The principle of CBDR actually has an incentive effect on developing countries: by lesser initial commitments they are encouraged to join international environmental regimes, which, for its part, assist these countries towards sustainable development paths. CBDR and the concept of sustainable development essentially share the same objective: to (relatively) effectively achieve improved state of the environment without unduly burdening any party.

31

Cullet (1999) 170.

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Bibliography Cordinier Segger et al. (2003) Cordonier Segger M.-C. -Khalfan A. -Gehring M. -Toering M., “Prospects for Principles of International Sustainable Development Law after the WSSD: Common but Differentiated Responsibilities, Precaution and Participation” 12 RECIEL (2003) 54-68.

Cullet (1999) Cullet P., “Equity and Flexibility in the Climate Change Regime: Conceptual and Practical Issues” 8 RECIEL (1999) 168-179.

Cullet (2003) Cullet P., Differential Treatment in International Environmental Law (Aldershot 2003), Ashgate.

Drumbl (2002) Drumbl M. A., “Poverty, Wealth, and Obligation in International Environmental Law” 76 Tulane Law Review (2002) 843-960.

Flory (1982) Flory M., “Adapting International Law to the Development of the Third World” 26 Journal of African Law (1982) 12-20.

Franck (1995) Franck T. M., Fairness in International Law and Institutions (Oxford 1995), Oxford University Press.

Harris (2000) Harris P. G., “International Norms of Responsibility and U.S. Climate Change Policy”, in P. G. Harris (ed.), Climate Change and American Foreign Policy (New York 2000), St. Martin’s Press, 225-239.

Matsui (2002) Matsui Y., “Some Aspects of the Principle of “Common but Differentiated Responsibilities”” 2 International Environmental Agreements: Politics, Law and Economics (2002), 151-171.

Piddington (1989) Piddington K. W., “Sovereignty and the Environment. Part of the Solution or Part of the Problem?” 31 Environment (1989) 19-20, 35-39.

Rajamani (2000) Rajamani L., ‘The Principle of Common but Differentiated Responsibility and the Balance of Commitments under the Climate Regime’ 9 RECIEL (2000) 120-131.

Rajamani (2006) Rajamani L., Differential Treatment in International Environmental Law (Oxford 2006), Oxford University Press.

Schrijver (2005) Schrijver N., “The New Delhi Declaration: Principles of International Law Related to Sustainable Development, a Commentary”, in M.-C. Cordonier Segger – C. G. Weeramantry, Sustainable Justice: Reconciling Economic, Social and Environmental Law (Leiden 2005), Martinus Nijhoff, 549-560. 266

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Stone (2004) Stone C. D., “Common but Differentiated Responsibilities in International Law” 98 AJIL (2004) 276-301.

Verwey (1983) Verwey W. D., “The Principle of Preferential Treatment for Developing Countries” 23 Indian Journal of International Law (1983) 343-500.

WCED (1987) World Commission on Environment and Development, Our Common Future (Oxford 1987), Oxford University Press.

Table of Treaties • Protocol on Substances that Deplete the Ozone Layer, Montreal, 16 September 1987, 26 ILM (1987) 154. • United Nations Framework Convention on Climate Change, New York, 9 May 1992, 31 ILM (1992) 849. • Kyoto Protocol to the United Nations Framework Convention on Climate Change, Kyoto, 10 December 1997, 36 ILM (1998) 22.

Abbreviations CBDR CFC EU GEF ILA MEA NIEO UN UNGA WSSD

common but differentiated responsibilities chlorofluorocarbon European Union Global Environment Facility International Law Association multilateral environmental agreement New International Economic Order United Nations United Nations General Assembly World Summit on Sustainable Development

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part iii sustainable development and international trade and investment law chapter 3.1

Sustainable Development in World Trade Law A Short History Markus W. Gehring

chapter 3.1

sustainable development in world trade law

In recent years as international trade compacts have proliferated and the scope of World Trade Organization (WTO) activities has extended beyond purely economic parameters, there has been a growing awareness that the implications of trade have developmental, social, environmental and health aspects. Given these nexuses, it is crucial that trade law regulating transactions is informed by a holistic perspective that takes into account potential impacts from a sustainable development point of view. The infrastructure of sustainable development must reconcile three premises: the trade perspective is adamant that economic liberalization provides the most efficient way of environmental protection and societal betterment; the environmental viewpoint asserts that the status quo is fatally harming natural capital and must be modified and the development schema prioritizes curtailing the incidence of poverty. On a theoretical level, trade is not automatically good or bad for the environment and social development. Rather, the specific contours of international trade rules and regimes and modes of implementation dictate the degree to which trade advances sustainable development goals. Public international law, the umbrella under which international trade law is situated, can and should adopt a principled approach to ensure that it can deliver on its global objective of sustainable development. Balanced and integrated legal analysis is a prerequisite to ensure that prescriptions resonate with developmental initiatives. A nuanced understanding of recent developments in world trade law, focusing on intersections between economic, social and environmental fields of law and policy, can enhance the positive (and mitigate any negative) aspects of this complex relationship. In the context of ongoing trade law debates that encompass the negotiations in the 2003 Cancun Ministerial and the 2005 Hong Kong Ministerial, there has been anxiety that the WTO and other international trade institutions cannot adequately respond to the principal opportunities and threats that were identified by representatives of over 180 countries at the 2002 World Summit for Sustainable Development (WSSD): “Globalization offers opportunities and challenges for sustainable development. We recognize that globalization and interdependence are offering new opportunities to trade, investment and capital flows and advances in technology, including *

Markus Gehring is Lecturer in Public International Law and European Law at Cambridge University; Robinson College. This chapter shares thoughts with the Introduction of Sustainable Development in World Trade Law by Markus Gehring and Marie-Claire Cordonier Segger. A version of this paper was presented at the CIAJ Conference 2006 in Vancouver and at the University of Oslo – 20 years after Brundtland Conference 2007 and many valuable comments were received. The chapter was made possible by an active research group at the CISDL, in particular through the help of Kristina Davies, BA (UBC), LLB Candidate (Queens) and the publications officer Carlos Iván Fuentes, Licentiate in Law and Political Sciences summa cum laude (USMA-Panama), LL.M. (McGill).



See for example Nordström and Scott (2008).

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information technology, for the growth of the world economy, development and the improvement of living standards around the world. At the same time, there remain serious challenges, including serious financial crises, insecurity, poverty, exclusion and inequality within and among societies.”

While any single international organisation or process would be hard-pressed to address this broad range of challenges alone, measures can certainly be taken to increase the likelihood that emerging international trade regimes will support sustainable development. Indeed, despite the negotiating gridlock that has characterized the latest Round, there are even tentative signs of progress toward this goal. This paper explores emerging issues related to sustainable development that have gained prominence in the context of the recent ‘Doha Development Agenda’ (DDA) of trade negotiations, taking into account the outcomes of the 2002 WSSD in Johannesburg, South Africa.  It aims to discuss the recent development of a constructive global trade and sustainable development law agenda mainly through specific analysis of developing rules, procedural and substantive innovations, controversial or emerging issues that are currently up for negotiation and case studies on various levels. World trade law is a multilayered system; it envelops supranational, regional and bilateral components. In many of the latter agreements, innovative mechanisms are being tested to



‘Johannesburg Declaration on Sustainable Development and Johannesburg Plan of Implementation’ in Report of the World Summit on Sustainable Development (4 September 2002) UN Doc A/CONF.199/ L20 [45].



See Marrakesh Agreement Establishing the World Trade Organization (signed 15 April 1994, entered into force 1 January 1995) 1867 UNTS 4, 33 ILM 1144, Preamble; which recognises that WTO Members: “relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development,… Recognizing further that there is need for positive efforts designed to ensure that developing countries, and especially the least developed among them, secure a share in the growth in international trade commensurate with the needs of their economic development.” See also WTO, United States: Import Prohibition of Certain Shrimp and Shrimp Products Sector – Report of the Appellate Body (20 September 1999) WT/DS58/AB/R [129] n 107; where the WTO Appellate Body observes that the Preamble to the WTO Agreement specifically refers to ‘‘the objective of sustainable development’’ and characterizes it as a concept that has ‘‘been generally accepted as integrating economic and social development and environmental protection.”

 

Cordonier Segger and Khalfan (2004) 25-43.

Marrakesh Agreement (n 3).

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ensure mutual supportiveness between trade, environment and development law. Depending on the modalities chosen, intersections of these issue-areas can create both an overlapping and crosscutting latticework of rules and stipulations. Not only do the linkages have a legal character, collaboration between IGOs (UNDP, UNEP), NGOs and Multilateral Environmental Accords (i.e. UNCBD, UNFCCC) has resulted in institutional ties as well. With this in mind, the remainder of the paper analyses the core negotiations and controversy surrounding the Doha Development agenda as well as the relevant international economic law jurisprudence that has been accreting in recent years. Attempts will be made to identify areas where further research or closer adherence to principles and practices of sustainable development law might contribute to trade laws configured to deliver on sustainable development objectives.



1 Contours of Sustainable Development within International Law

Development can be defined as the processes of expanding people’s choices, enabling improvements in collective and individual quality of life, and the exercise of full freedoms and rights. Amartya Sen, in Development as Freedom, describes development as a process of amplifying the domain of personal freedoms people can enjoy. Sen characterizes the expansion of freedoms as the ‘instrumental’ and ‘constitutive’ roles of development (the means and the ends respectively), recognising in particular five instrumental freedoms that encompass the manners in which individual opportunities and capabilities of citizens living in developing countries could be improved. Sen’s second category of “economic facilities” has an intrinsic human rights element. When regimes and regulations allow the opening and stabilization of developing country markets there is often a concomitant augmentation in the exercise of fundamental rights and freedoms. However, in order for this positive spill over to occur these



Integration as part of the concept of sustainable development has mainly been proposed in trade policy discussions by the demand to “[e]nsure that environment and trade policies are mutually supportive, with a view to achieving sustainable development…” ‘Agenda 21 (Annex 2)’ in Report of the UN Conference on Environment and Development Vol. I (13 June 1992) UN Doc A/CONF.151/26 (Vol I); 31 ILM 874 [2.10].



See, e.g., United Nations Development Programme, Human Development Reports accessed 25 January 2008; United Nations Development Programme, Making Global Trade Work for People (Earthscan Publications, London 2003), xi accessed 25 January 2008.



Sen (1999) 35.



Ibid 38 (the five sub-categories are (1) political freedoms, (2) economic facilities, (3) social opportunities, (4) transparency guarantees and (5) protective security).

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economic policies must reflect and not sideline other developmental aspirations.10 The concept of sustainable development is widely accepted by the global community; its underlying ideas have governed the practices of many ancient cultures and traditions for thousands of years.11 The term itself appears to have originally emerged in laws governing forest industry management practices, which were established in European forestry laws (Forstordnungen) toward the end of the 18th century.12 According to these laws, the rate of logging was calculated according to the speed of natural replenishment. Thus, forests were treated as natural capital and managed with longevity in mind. It is significant that from inception the concept of sustainable development did not revolve around impinging on economic activity but rather re-directed it in order to ensure the potential for long-term, sustained yields. At present, the most generally accepted definition of sustainable development is found in the 1987 Brundtland Report, where it is seen as “…development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” 13 It focuses on ‘needs’, especially the essential needs of the world’s poor, to which overriding priority should be given, and the ‘limitations’ imposed by the current state of technology and social organization on the environment’s ability to meet human needs. The impetus for development was predicated on a long term, balanced reconciliation and integration of economic, environmental and social priorities. The 2002 WSSD in Johannesburg, South Africa, raised considerable global awareness about the solidifying sustainable development ethos. However, from an international law standpoint, sustainable development remains somewhat unrefined. At present it is tenuous to describe sustainable development as a binding principle of customary law.14 It is also doubtful that the concept is principally (or solely) situated within international environmental law. Given the ambiguity surrounding sustainable development law (SDL) in classical international law terms, it might make sense to think of it as a novel type of legal norm – an ‘interstitial’ concept that facilitates and requires reconciliation of other legal 10 11

Ibid 39.

As observed by H.E. Judge C.G. Weeramantry in his extraordinary Separate Opinion for the Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgement) General List No 92 [1997] ICJ 7, (1998) 37 ILM 162.

12 13

See ‘Lexikon der Nachhaltigkeit‘ accessed 25 January 2008.

World Commission on Environment and Development, Our Common Future (1987) 43; see also ‘Our Common Future’ UN World Commission on Environment and Development Rep (4 August 1987) UN Doc A/42/427.

14

As noted by Vaughan Lowe, ‘‘the argument that sustainable development is a norm of customary international law, binding on and directing the conduct of states, and which can be applied by tribunals, is not sustainable.’’ See Lowe (1999) 26.

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norms relating to environmental protection, social development and economic growth.15 Furthermore, sustainable development, in one formulation or another, has been enshrined as an explicit object and purpose of over fifty binding international treaties.16 It is also central to the mandate of many international organizations, and the subject of numerous ‘soft law’ declarations and international guidelines. As an objective, the concept of sustainable development guides domestic and international law in many areas of economic, social and environmental policy, particularly where these fields intersect. As such, SDL can be conceptualized as an autonomous, emerging area of international law in its own right consisting of the “body of legal principles and instruments at the intersection of environmental, social and economic law, those which aim to ensure development that can last.”17 SDL comprises: “a group of congruent norms, a corpus of international legal principles and treaties, which address the areas of intersection between international economic law, international environmental law and international social law in the interests of both present and future generations. Procedural and substantive norms and instruments, which help to balance or integrate these fields, form part of this body of international law and play a role in its implementation.” 18

Ten years before the 2002 WSSD, a declaration from the 1992 United Nations Rio Conference on Environment and Development (UNCED), called for “[t]he further development of international law on sustainable development, giving special attention to the delicate balance between environmental and developmental concerns.”19 It further identified a “need to clarify and strengthen the relationship between existing international instruments or agreements in the field of environment and relevant social and economic agreements or instruments, taking into account the special needs of developing countries.”20 The 2002 Johannesburg Plan of Implementation (JPOI) made a collective commitment to “advance and strengthen the interdependent and mutually reinforcing pillars of sustainable development – economic development, social development and environmental protection – at the local, national, regional and global levels.” 21 These commitments encompassed the central tenets of the emerging interna15

Ibid; see also Cordonier Segger and Khalfan (2004) 46.

16

Cordonier Segger and Khalfan (2004) 45-50, 95-98; see also, for general discussion, French (2005); Weiss and Schrijver (2004); and Boyle and Freestone (1999).

17

Cordonier Segger and Khalfan (2004) 368. The main principles of international law related to sustainable development are proposed in the ‘ILA New Delhi Declaration of Principles of International Law Relating to Sustainable Development’ (2002) 2 Intl Environmental Agreements 209.

18

Ibid.

19

Agenda 21 (n 6) [39.1 (a)].

20 21

Ibid [39.1 (b)].

Johannesburg Declaration (n 2) 5.

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tional sustainable development law agenda. In summary, it can be convincingly argued that a commitment to promote sustainable development in international law requires a balanced reconciliation or integration between economic growth, social justice and environmental protection objectives achieved through participatory mechanisms that ameliorate the collective quality of life enjoyed at present without compromising the needs of future generations.22



2 World Trade Law as an Instrument for Sustainable Development?



2.1 Negotiating Sustainable Development in the WTO?

The current international trade regime had its origins in the Havana Charter,23 a constitution drafted to create the International Trade Organization (ITO). Along side the World Bank and the International Monetary Fund, the ITO was supposed to supplement the regulation of world economic policy within the trading sphere.24 In addition to regulations about tariffs and trade, the proposed Charter contained labour, agricultural and investment provisions. However, upon failing to win the approval of the U.S. Senate, the ITO effectively never moved beyond blueprint stage. In its place, the General Agreement on Tariffs and Trade (GATT) – concerned solely with economic transactions -- was created as a stopgap mechanism and came into being by virtue of its non-legal status.25 The GATT was devised at least partially in response to the unreceptive U.S. domestic environment; multilateral decisions were to be taken by the “CONTRACTING PARTIES acting jointly” and not by any organizational body.26 Other notable characteristics of the GATT were a small secretariat and decision-making and dispute settlement bound by consensus. Different majorities of the CONTRACTING PARTIES collaborated for decisions of interest; amendments usually required two-thirds of the group and were only binding on those who assented.27 In effect, a simple majority had judicial power to interpret the General Agreement and the administrative authority to service it as well as the ability to facilitate operation and to further objectives of the agreement (i.e. launching new rounds and administering the dispute settlement process).28 A less fragmented approach to world economic policy might have allowed for 22 23

Cordonier Segger (2004).

See ‘Havana Charter For An International Trade Organization’, UN Conference on Trade & Development, Final Act and Related Documents (24 March 1948) UN Doc E/Conf 2/78 (1948).

24 25

Jackson (1997).

Vernon (1995) 330.

26 27

Hoekman and Kostecki (2001) 38.

Steinberg (2002) 344.

28

Ibid.

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sustainable development principles to be more easily integrated into the trading system; the status quo arrangement continues to struggle to delimit the proper scope of WTO jurisdiction. Tariff liberalization under the GATT proceeded for several decades before inconsistencies in plurilateral agreements, complicated institutional cohesion and changing comparative advantages29 led powerful parties to pressure for the inclusion of new issues. The Tokyo Round saw the proliferation of nontariff barriers (in the guise of voluntary export restraints) and the phenomena of GATT à la carte emerged as CONTRACTING PARTIES selectively applied rules and dispute settlement processes. Developing countries participated in the GATT from 1948 onwards, but it was only during the Kennedy Round, which lasted from 1963 to 1967, that actual textual changes were invoked to attempt to address specific development needs. In the early 1960s, many newly independent countries acceded to the GATT. 1965 saw the inauguration of Part IV of the GATT dealing with ‘Trade and Development.’30 Construed as a set of guidelines, this additional chapter prioritized the retrenchment of trade barriers maintained by developed states on products of interest to developing countries but failed to amend the institutional architecture of the GATT. Many developing countries expressed dissatisfaction that Part IV did not adequately influence the course of Kennedy negotiations. The GATT Committee on Trade and Development was established at this juncture as a response to these concerns coupled with an increasing awareness that a myopic view on the economic aspects of trade was untenable from a developmental point of view. The institutionalisation of the United Nations Conference on Trade and Development (UNCTAD) in 1964 did not have the substantive impact developing states presaged. UNCTAD was only modestly able to mitigate the GATT’s initial lack of progress in addressing trade and development concerns. The organization acquired certain prominence as an intergovernmental forum for North-South dialogue, for the facilitating of negotiations on economic issues of interest to developing countries (including debates on the ‘New International Economic Order’), its analytical research and policy advice on trade and development issues and the finalization of several international accords (including commodity agreements). In 1968, the GATT and UNCTAD jointly established an International Trade Centre (ITC) to facilitate trade promotion and consult on strategic market specialization for developing countries. During the 1970s, UNCTAD continued to play a key role in trade and development discussions. Development economics in this era endorsed and prioritized the use of development assistance and gave less attention to reforming the structure of trade laws. In accordance with this philosophy, UNCTAD assisted in setting a target for official development aid (ODA) levels by developed countries 29

Services, TRIPS and TRIMS were among the new areas of comparative advantage. The international context also included an affinity to export-oriented. See Narlikar (2005).

30

See Michaelis and Jessen in Hilf and Oeter (2005).

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to the poorest countries of 0.7% of GDP. However, despite formal adoption and reiteration of the target in all major UN Conferences and Summits since that date the majority of states have failed to live up to their obligations. Further attempts to facilitate development interests through world trade law were made in the Tokyo Round (1973-1979) and resulted in an ‘enabling clause’ on “Differential and More Favorable Treatment, Reciprocity and Fuller Participation of Developing Countries” (also known as ‘Special and Differential Treatment’). The enabling clause established an exception from Article I of GATT allowing special and differential treatment for developing countries. Although this double standard has been controversial from inception it has only recently been challenged in the Dispute Settlement Mechanism of the WTO. Another attempt to abet development of struggling states involved labelling. UNCTAD identified a group of Least Developed Countries (LDCs) that began to serve as the focal point for LDCs economic development and technical assistance needs. Partly due to such efforts, the participation of developing countries in the Uruguay Round, was much greater than in previous negotiations. It is hard to overestimate the degree to which the Uruguay Round (‘the Round’) of the GATT Multilateral Trade Agreements was a watershed moment for the international trade regime. The Uruguay Round negotiations, which lasted from 1986-1994, involved one hundred twenty countries and produced sixty agreements and decisions totalling five hundred fifty pages.31 The negotiations produced a large, intricate array of compacts aimed at remedying the stagnant process of liberalization in particularly contentious sectors, promoting further tariff reduction, creating a permanent trade body, buttressing dispute settlement procedures and facilitating new trade arrangements in services, investment and intellectual property.32 Thus, the Round was unprecedented in terms of scope and institutional restructuring aimed at applying a predictable framework of rules and thereby strengthening the system of international trade. The erosion of an effective international trade regime was a galling scenario for both developed and developing countries alike as the global economy had become immensely intertwined and national prosperity was increasingly predicated on high levels of market access. The augmenting friction within the GATT system was one of the predominant reasons why developing countries sought enhanced engagement and leverage in the Uruguay Round negotiating process. Throughout the process developing states were focused on making substantive market access concessions in order to be taken seriously and to receive reciprocal benefits from the new accord. At the crux of this strategy was an emphasis 31

‘Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations’ 33 ILM 1143 accessed 25 January 2007; the primary document is the Agreement Establishing the WTO (enshrining the ‘single undertaking’ character of the endeavor), within which there are Annexes pertaining to agreements on goods, services, intellectual property, dispute settlement, trade policy review mechanism and plurilateral agreements.

32

Hamilton and Whalley (1996) 1.

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on openness and market-based policy reform as a prelude to garnering more foreign investment and becoming essential stakeholders (not just “rule-takers”) within the multilateral trade policy-making fora.33 Beyond merely reacting to this altered strategy, in the years leading up to the Round, developed countries surmised that their developing counterparts were becoming more compelling trading partners and in many cases had exciting growth potential in sought after commodities.34 Much emphasis is placed on the “grand bargain” struck between developed and developing states when assessing the results of the Round. Ostry defines the “grand bargain” in the following terms: “It was essentially an implicit deal: the opening of OECD markets to agriculture and labor-intensive manufactured goods, especially textiles and clothing, for the inclusion into the trading system of trade in services (GATS), intellectual property (TRIPS) and (albeit to a lesser extent than originally demanded) investment (TRIMS). And also – as a virtually last minute piece of the deal – the creation of a new institution, the WTO, with the strongest dispute settlement mechanism in the history of international law”.35

The 1970s also saw the emergence of significant global concern for human rights and the environment, particularly in developed countries. This generated considerable controversy for developing countries,36 as the latter planned to focus on the full exploitation of their natural resources in order to promote pressing priorities related to economic growth.37 One study, “Limits to Growth,” predicted a global disaster if international policies were not changed to balance economic development and the utilization of non-renewable natural resources.38 In 1983, States established the World Commission on Environment and Development (WECD) an independent investigatory body composed of international policy and scientific experts in accordance with UN General Assembly (UNGA) Resolution Res. 38/161. The outcome of the WCED process, the Brundtland Report, led to UNGA Resolution 42/187, which resolved that sustainable development “should become a central guiding principle of the United Nations, Governments and private institutions, organizations and enterprises.” 33

Safadi and Laird (1996); since the launching of the round in 1986, sixty developing states unilaterally lowered barriers to imports in conjunction with a reorientation of domestic policies.

34

Bach et al (2002),; during timeframe of the Uruguay Round, developing countries embodied higher growth rates of output, employment and trade when compared to industrialized countries; see Martin and Winters (eds) (1996).

35

Ostry (2002) 5.

36 37

See Hunter, Salzman and Zaelke (2001).

See ‘Permanent Sovereignty over Natural Resources’ UNGA Res 1803 (XVII) (14 December 1962) UN Doc A/Res/1803 (XVII).

38

See Meadows et al (1972).

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Based on this foundation in the UN system, the concept of sustainable development became an overarching theme of the 1992 United Nations Conference on Environment and Development (UNCED) in Rio de Janiero, which attracted over 140 heads of state – the largest global Summit in history,39 at that time. One of the conference outcomes, Agenda 21, highlighted that achieving enduring social and economic dimensions of development required that international trade and environment policies needed to be mutually supportive. 40 The negotiation of the Preamble of the 1994 WTO Agreement is not very well documented, but was likely influenced by the outcomes of the 1992 UNCED. The words ‘sustainable development’ were added to the preambular text in a penultimate session. The Preamble of the WTO Agreement now states that: “Recognizing that their relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development… Recognizing further that there is need for positive efforts designed to ensure that developing countries, and especially the least developed among them, secure a share in the growth in international trade commensurate with the needs of their economic development.”41 (emphasis added)

39

Among the outcomes of the UNCED were three international treaties (on climate change, biological diversity and, a little later, desertification and drought) which recognised both environmental and sustainable development objectives, as well as the non-binding 1992 Rio Declaration and Agenda 21, which were adopted by governments. See ‘Rio Declaration on Environment and Development (Annex 2)’, Report of the UN Conference on Environment and Development Vol. I (13 June 1992) UN Doc A/CONF.151/26 (Vol I), (1992) 31 ILM 874; Agenda 21 (n 6).

40

Agenda 21 (n 6) [2.19] stated that “Environment and trade policies should be mutually supportive. An open, multilateral trading system makes possible a more efficient allocation and use of resources and thereby contributes to an increase in production and incomes and to lessening demands on the environment. It thus provides additional resources needed for economic growth and development and improved environmental protection. A sound environment, on the other hand, provides the ecological and other resources needed to sustain growth and underpin a continuing expansion of trade. An open, multilateral trading system, supported by the adoption of sound environmental policies, would have a positive impact on the environment and contribute to sustainable development.”

41

Marrakesh Agreement (n 3) Preamble.

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While preambular statements are not technically legally binding in the same way that operational provisions can be, 42 they can certainly play a role in interpretation of a treaty, particularly in identifying the treaty’s object and purpose. Thus, it is important to understand the intended meaning of the Preamble to the WTO Agreement. In the Preamble, the concept of sustainable development is mentioned in connection with the optimal use of the world’s resources. This may be partly because the Preamble was drafted as an expansion of the GATT 1947 Preamble, which referred conclusively to the need for “[…] developing the full use of the resources of the world […].” It may also refer to the historical origins of the concept itself, which as noted above, emerged from the management practices of an important agro-forestry industrial sector. It is important to note however, that the Preamble specifically recognises the need to raise standards of living and income for people, to protect the environment, and to do so in a way that is consistent with the needs and concerns of developing countries, so that international trade can contribute to these countries’ development needs. Indeed, two years later in the 1996 Singapore Ministerial Declaration, 43 the Preamble of the WTO Agreement did not inspire new negotiations on binding rules. Instead, a short note appears in Para. 16, limited only to trade and environment issues, stating: “Full implementation of the WTO Agreements will make an important contribution to achieving the objectives of sustainable development.”44In this reference, sustainable development objectives are clearly linked to the implementation of the international trade regime, rather than simply the optimal use of natural resources. It is an expanded recognition of the concept; nonetheless, the text manages to give the impression that sustainable development is a natural result of liberalized trade. In the 1998 Geneva Ministerial Conference, there was further movement towards establishing sustainable development as more than a reason for enhanced trade, or a way to constrain 42

In general international law the preamble is part of the context in which the international treaty has to be interpreted; see Vienna Convention on the Law of Treaties (singed 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, 8 ILM 679, art. 31; “General rule of interpretation at 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes […]” The preamble can contain important information about the object and purpose of the treaty.

43

Please note that the Ministerial declarations are generally political statements and not legally binding upon Members. An exception is the decision to engage in trade negotiations. If negotiations are commissioned the Ministerial declaration acquires quasi legal status, because each formulation constitutes a negotiation mandate and sets the limitations of these negotiations. Nonetheless, ministerial declarations are adopted unanimously and reflect the political opinion of the overall development of the organization.

44

Singapore Ministerial Declaration (18 December 1996) WT/MIN(96)/DEC, 36 ILM 218 accessed 25 Januarry 2008.

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environmental measures. The preamble of the Ministerial Declaration states, at Para. 4: “We shall also continue to improve our efforts towards the objectives of sustained economic growth and sustainable development.” 45 In 1998, the organization and member states formally recognized that sustainable development is not only related to natural resources or an inevitable result of the economic liberalization process, but is actually one of the goals of the WTO itself. The links between this concept and the concept of sustained economic growth are also put into relief. By 1998, several countries and regions had introduced the goal of sustainable development into their laws and policies, 46 and it is likely that they sought to reflect this commitment in one of the most important international economic law-making processes of the decade. Indeed, this position echoed developments in the other important forum in which WTO rules and regimes are clarified and interpreted: the dispute settlement system.



2.2 ‘Sustainable Developments’ in Recent WTO Disputes?

While there is no stare decisis in world trade law, WTO panels and two Appellate Bodies do appear to find the acquis of past GATT and the WTO cases highly persuasive for the purpose of deciding future disputes. Consequently, it is worthwhile to briefly highlight certain elements of two particular decisions which serve to explain the WTO’s view of the concept of sustainable development in world trade law, as it currently stands: the US – Shrimp Case47, and the EC – Tariff Preferences Case. 48 The US – Shrimp Case concerned a regulation under the 1973 US Endangered Species Act to protect five different species of endangered sea turtles. The US requires that US shrimp trawlers use “turtle excluder devices (TEDs)” in their nets. A different law then prohibited shrimp imports from regions where trawlers were not equipped with TEDs in the presence of sea turtles. India, Malaysia, 45

Geneva Ministerial Declaration (20 May 1998) WT/MIN(98)/DEC/1 .

46

For example, large trading countries such as Germany amended their Constitutions to include the goal of sustainable development, see Grundgesetz für die Bundesrepublik Deutschland (German Constitution) art. 20; and trading regions such as the European Union had accepted sustainable development as an objective of their integration, see Treaty of Amsterdam Amending the Treaty on European Union (signed 2 October 1997, entered into force 1 May 1999) [1997] OJ C 340/1, art. 2 accessed 25 January 2008; see also the outcomes of the Summit of the Americas on Sustainable Development, Declaration of Santa Cruz de la Sierra (adopted 7 December 1996) accessed 25 January 2008; as discussed generally in Cordonier Segger and Leichner Reynal (eds) (2005).

47

See WTO, United States: Import Prohibition of Certain Shrimp and Shrimp Products Sector – Panel Report (15 May 1998) WT/DS58/R; see also United States: Shrimp – Appellate Body Report (n 3).

48

WTO, European Communities: Conditions for the Granting of Tariff Preferences to Developing Countries – Appellate Body Report (20 April 2004) WT/DS246/AB/R.

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Pakistan and Thailand complained that the prohibition was inconsistent with US GATT obligations. The panel and the Appellate Body decided in favour of the complainants and asked the US to bring its laws into compliance with GATT 1994 obligations. In the case, the US proposed that Art. XX GATT should be interpreted in the light of the preamble of the WTO Agreement; “[a]n environmental purpose is fundamental to the application of Article XX, and such a purpose cannot be ignored, especially since the preamble to the Marrakesh Agreement Establishing the World Trade Organization (the ‘WTO Agreement’) acknowledges that the rules of trade should be ‘in accordance with the objective of sustainable development’, and should seek to ‘protect and preserve the environment’.”49 In its arguments, the US omitted the reference to the world’s resources and the statement concerning the “respective needs and concerns at different levels of economic development”. The Appellate Body decision considers the Preamble, but does not follow the US argument: “The words of Article XX(g), ‘exhaustible natural resources’, were actually crafted more than 50 years ago. They must be read by a treaty interpreter in the light of contemporary concerns of the community of nations about the protection and conservation of the environment. While Article XX was not modified in the Uruguay Round, the preamble attached to the WTO Agreement shows that the signatories to that Agreement were, in 1994, fully aware of the importance and legitimacy of environmental protection as a goal of national and international policy. The preamble of the WTO Agreement – which informs not only the GATT 1994, but also the other covered agreements – explicitly acknowledges ‘the objective of sustainable development’.50” (emphasis added)

The enclosed legal note, as part of the Appellate Body’s decision,51 deserves particular attention in this volume. The Appellate Body refers to the objective of sustainable development and in a footnote, expands on its relevance to the case. The Appellate Body explained that “[t]his concept has been generally accepted as integrating economic and social development and environmental protection” (emphasis added). This is remarkable for two reasons. First, the WTO Appellate Body delineated its stance on the nature of sustainable development and agrees that it should be framed as a ‘concept’ (as opposed to a principle, policy or rule), in world trade law. Second, a reading of the definition demonstrates the WTO’s recognition of the need to integrate all three elements or ‘pillars’ of sustainable 49 50

United States: Shrimp – Appellate Body Report (n 3) [12].

Ibid n 107; in the Appellate Body Report, reads: “This concept has been generally accepted as integrating economic and social development and environmental protection. See e.g., Handl (1995) 35; World Commission on Environment and Development (n 13) 43.”

51

United States: Shrimp – Appellate Body Report (n 3) [123].

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development – social development, economic development and environmental protection. The recognition of the social dimension of the concept, effectively laid the groundwork for subsequent focus on this element in the 2002 WSSD. The Appellate Body continued with their interpretation of the preamble in WTO law: “[w]e note once more that this language demonstrates recognition by WTO negotiators that optimal use of the world’s resources should be made in accordance with the objective of sustainable development. As this preambular language reflects the intentions of negotiators of the WTO Agreement, we believe it must add colour, texture and shading to our interpretation of the agreements annexed to the WTO Agreement, in this case, the GATT 1994. We have already observed that Article XX(g) of the GATT 1994 is appropriately read with the perspective embodied in the above preamble.”52 This addition of “colour, texture and shading” seems to amplify the previous language: ‘interpretation based on the context of the agreement.’ It indicates that the Appellate Body understands that the concept of sustainable development informs Members’ intentions in all of the annexed agreements. The Appellate Body insisted “[w]e also note that since this preambular language was negotiated, certain other developments have occurred, which help to elucidate the objectives of WTO Members with respect to the relationship between trade and the environment. The most significant, in our view, was the Decision of Ministers at Marrakesh to establish a permanent Committee on Trade and Environment (the “CTE”). In their Decision on Trade and Environment, Ministers expressed their intentions, in part, as follows: …Considering that there should not be, nor need be, any policy contradiction between upholding and safeguarding an open, non-discriminatory and equitable multilateral trading system on the one hand, and acting for the protection of the environment, and the promotion of sustainable development on the other. 53 In this Decision, Ministers took ‘note’ of the Rio Declaration on Environment and Development,54 Agenda 21,55 and its follow-up in the GATT, as reflected in the statement of 52 53

Ibid [153].

Ministerial Decision on Trade and Environment (15 April 1994) LT/UR/D-5/8, 33 ILM 1267, preamble accessed 25 January 2008.

54

We note that Principle 3 of the Rio Declaration on Environment and Development states: “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.” Principle 4 of the Rio Declaration on Environment and Development 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.”

55

Agenda 21 is replete with references to the shared view that economic development and the preservation and protection should be mutually supportive. For example, paragraph 2.3(b) of Agenda 21 states: “The international economy should provide a supportive international climate for achieving environment and development goals by … [m]aking trade and environment mutually supportive….” Similarly, paragraph 2.9(d) states that an ‘objective’ of governments should be: “To promote and support policies, domestic and international, that make economic growth and environmental protection mutually supportive.”

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the Council of Representatives to the CONTRACTING PARTIES at their 48th Session in 1992.56 Crucial explanatory comments are again found in the footnotes. The Appellate Body cites specific rules and provisions of the Rio Declaration and Agenda 21, which refer to balancing with regard to the needs of developing countries. As such, the Appellate Body presently interprets the preamble constructing linkages between the connection to 1992 UNCED and the 1992 Rio Conference outcomes. This reasoning was adopted and applied in subsequent WTO panel and Appellate Body reports related to the US-Shrimp Case, when Malaysia took recourse to Article 21.5 of the WTO Dispute Settlement Understanding,57 arguing that the measures taken by the US did not comply with the recommendations and rulings of the DSB. In particular, the Panel stated that: “In that framework, assessing first the object and purpose of the WTO Agreement, we note that the WTO preamble refers to the notion of “sustainable development”.58 This means that in interpreting the terms of the chapeau, we must keep in mind that sustainable development is one of the objectives of the WTO Agreement.”59 On appeal, this interpretation was not overturned by the WTO Appellate Body.60 The EC – Tariff Preferences Case 61 concerned the scheme of generalised tariff preferences for developing countries. India complained that special preferences based on certain drug arrangements adopted by beneficiary countries were inconsistent with the most-favoured nation clause (Article 1.1 GATT 1994) and could not be justified under the Decision on Differential and More Favourable Treatment, Reciprocity, and Fuller Participation of Developing Countries (the “Enabling Clause”).62 Similar provisions exist for environmental and labour rights, but in the end these were not challenged. The panel found that the EC’s 56 57

Ministerial Decision on Trade and Environment (n 53).

WTO, United States: Import Prohibition of Certain Shrimp and Shrimp Products Sector – Recourse by Malaysia to Article 21.5 of the DSU (13 October 2000) WT/DS58/17.

58

In the Panel Report, this citation reads: “See the final texts of the agreements negotiated by Governments at the United Nation Conference on Environment and Development (UNCED), Rio de Janeiro, Brazil, 3-14 June, 1992, specifically the Rio Declaration on Environment and Development (hereafter the “Rio Declaration”) and Agenda 21 at www.unep.org; the concept is elaborated in detailed action plans in Agenda 21 so as to put in place development that is sustainable – i.e. that “meets the needs of the present generation without compromising the ability of future generations to meet their own needs”; see World Commission on Environment and Development (n 13).

59

WTO, United States: Import Prohibition of Certain Shrimp and Shrimp Products Sector, Recourse to Article 21.5 by Malaysia – Panel Report (15 June 2001) WT/DS58/RW.

60

WTO, United States: Import Prohibition of Certain Shrimp and Shrimp Products Sector, Recourse to Article 21.5 by Malaysia – Report of the Appellate Body (22 October 2001) WT/DS58/AB/RW.

61

United States: Shrimp – Appellate Body Report (n 3).

62

Differential and More Favourable Treatment Reciprocity and Fuller Participation of Developing Countries (28 November 1979) L/4903, BISD 26S/203.

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scheme was indeed inconsistent with Article 1.1 GATT and could not be justified under the enabling clause. This was because developed countries were compelled to grant identical tariff preferences under GSP schemes to all developing countries without differentiation and the panel found that it should apply to all developing countries. The Appellate Body reversed these last two findings but concluded that the drug criteria due to a closed list of beneficiary countries and unclear criteria for the selection of these countries was not covered by the exception. The EC argued that because the Enabling Clause was designed to fulfill the objectives of the WTO, it should not be interpreted as an exception to Article 1.1 GATT but rather as an incentive for developed countries to confer preferences on their less developed counterparts.63 The Appellate Body considered this argument and agreed with the initial observation. Indeed, it overturned one of the panel’s findings -- interpreting non-discrimination according to the objectives of the GATT and the WTO -- and accepting that the differentiation between developing countries according to their needs was possible. The Appellate Body, citing its US-Shrimp decision, found that the objectives of the WTO could be fulfilled through “General Exceptions”. They noted that ‘the optimal use of the world’s resources in accordance with the objective of sustainable development’ could be achieved through application of the WTO exceptions, such as Article XX (g) GATT. However, the panel in the same case found that the EC could not justify its drug arrangements under Article XX (b) GATT, because it could not prove that its system was designed to protect human health in the European Union. Rather the panel agreed with India’s argument that increased market access was intended to contribute to sustainable development of the beneficiary countries. As the fight against illicit drug production and exports were deemed to be part of a broader sustainable development objective (as confirmed by several multilateral instruments and the official justification to the Regulation setting up the EC System), these could not be justified as a measure which only sought to benefit the EC. This decision demonstrates that both the ‘environmental’ and the ‘development’ aspects (including health) are part of the concept of sustainable development that the WTO dispute settlement body recognises as a WTO objective. The most recent decision in Brazil – Retreaded Tyres is unique in that it was the first decision where a developing country invoked Art. XX GATT against a challenge by an industrialised country, in this case the European Communities.64 Brazil banned the import of retreaded tyres arguing that the large quantities of retreaded tyres imported from the EC created environmental problems including dangers associated with mosquitoes that breed in tyres and tyres catching fire. The EC argued that Brazil had not shown that the ban 63

Ibid [93]; interestingly a similar argument was made by one dissenting panel member in the panel case.

64

WTO, Brazil: Measures affecting Imports of Retreaded Tyres – Panel Report (12 June 2007) WT/DS332/R.

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on retreaded tyres was necessary to protect human health. The panel cited the US – Shrimp Appellate Body decision and the overall importance of the goal of sustainable development and interpreted Brazil’s reference to environmental protection as meaning the protection of human, animal or plant life or health (Art. XX b) GATT). The EC as one of the main exporters of used tyres (they are very hard to sell in Europe) requested formal consultations in June 2005.65 Shortly after the EC launched formal consultation Brazil raised the issue and justified its actions in the Committee on Trade and Environment: “Moreover, in order to achieve the cited objectives, and in harmony with the widely accepted principle of sustainable development – included in the preamble of the WTO Agreement – Brazil banned imports of used and retreaded tyres.”66 (emphasis added) This submission can be considered an interesting choice of words, because previously only developed countries had sought to invoke a legally binding principle of sustainable development. Among other legal issues the Brazil-Retreaded Tyres case centered on a discussion of Art. XX GATT, particularly the exceptions that Brazil allowed for retreaded tyres from Mercosur countries and due to court orders to the benefit of retreating companies. The panel found that the measure generally fulfilled Art. XX (b) GATT to protect animal, plant and human life or health but constituted a disguised restriction on international trade and was thus not justified under Art XX GATT. It further emphasised the importance of the Preamble to the WTO Agreement: “The objective pursued is also the protection of animal and plant life and health. The risks at issue relate to: (i) the exposure of animals and plants to toxic emissions caused by tyre fires; and (ii) the transmission of a mosquito-borne disease (dengue) to animals. The Panel acknowledges that the preservation of animal and plant life and health, which constitutes an essential part of the protection of the environment, is an important value, recognized in the WTO Agreement. The Panel recalls that in US – Shrimp67, the Appellate Body underlined that the preamble of the Marrakesh Agreement establishing the WTO showed that the signatories to that Agreement were, in 1994, fully aware of the importance and legitimacy of environmental protection as a goal of national and

65

On 20 June 2005, the European Communities requested consultations with Brazil under Article XXII:1 of the General Agreement on Tariffs and Trade 1994 (the “GATT 1994”) and Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (the “DSU”) regarding Brazil’s imposition of measures that adversely affect exports of retreaded tyres from the European Communities to the Brazilian market.

66

Committee on Trade and Environment, Trade in used and retreaded Tyres – Submission by Brazil (12 July 2005) WT/CTE/W/241; see also Committee on Trade and Environment, Report of the Meeting held on 6 July 2005 (2 Septemner 2005) WT/CTE/M/40 [82].

67

United States: Shrimp – Appellate Body Report (n 3) [129].

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international policy.68 Therefore, the Panel finds that the objective of protection of animal and plant life and health should also be considered important.”69 Interesting here is again the footnote which makes first reference to other WTO disputes and then to international documents related to sustainable development, even with specific relevance for the waste problem at hand, and then finally referring to the citation of the document by the opposing party, here the EC. This use of the preamble is arguably further reaching than that in other decisions and it suggests that the Doha negotiations might have influenced the importance that the panel attaches to the objective of sustainable development. There were also interesting observations by third parties to the dispute. For example China stressed the importance of the development dimension in the panel phase of the case. “Such sequence of analysis should be followed in this dispute because exceptions under Article XX [GATT] are invoked. Moreover, in the examination of the measures at issue in this case, China thinks it is proper for the Panel to take into consideration the ever-growing attention given to environmental protection among the international community and in WTO itself. The preamble of Marrakech Agreement declares that one objective of WTO is to pursue “the optimal use of the world’s resources in accordance with the objective of sustainable development” and “seeking both to protect and preserve the environment”. Under the guidance of these statements, the Appellate Body, in several disputes,70 accepted

68

The preamble of the Marrakech Agreement establishing the WTO reads in its relevant part: “Recognizing that their relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development”. (emphasis added) Moreover, in the 1994 Ministerial Decision on Trade and Environment, Ministers took note, inter alia, of the Rio Declaration on Environment and Development and Agenda 21. Of particular relevance is paragraph 4.19 of Agenda 21, which states, in part: “(...) society needs to develop effective ways of dealing with the problem of disposing of mounting levels of waste products and materials. Governments, together with industry, households and the public, should make a concerted effort to reduce the generation of wastes and waste products (...)”. The European Communities referred to the Rio Declaration and Agenda 21 in its response to question 37 by the Panel and in paragraph 138 of its first written submission.

69 70

Brazil: Tyres-Panel Report (n 64) [7.112].

For example, in the cases of: WTO, United States: Standards for Reformulated and Conventional Gasoline – Report of the Appellate Body (29 April 1996) WT/DS2/AB/RW; and United States: Shrimp – Appellate Body Report (n 3).

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the identification of certain disputed measures with environmental concern as under paragraph (b) of Article XX [GATT].”71

The Chinese delegation concluded that: “China hopes that the Panel will give considerations to the fact that the defending party in this case is a developing country. In fact, developing countries are facing more difficulties than developed countries in balancing their economic development and environment protection. In addition, in dealing with environmental problems, developing countries usually are less sufficient in terms of funding and less efficient in terms of technology. Therefore, the multilateral trade system should give more support and tolerance to developing countries’ endeavour to improve the environment.”72

The Appellate Body upheld the panel’s conclusion on the applicability of Art. XX (b) GATT. It added: “We recognize that certain complex public health or environmental problems may be tackled only with a comprehensive policy comprising a multiplicity of interacting measures. In the short-term, it may prove difficult to isolate the contribution to public health or environmental objectives of one specific measure from those attributable to the other measures that are part of the same comprehensive policy. Moreover, the results obtained from certain actions – for instance, measures adopted in order to attenuate global warming and climate change, or certain preventive actions to reduce the incidence of diseases that may manifest themselves only after a certain period of time – can only be evaluated with the benefit of time. In order to justify an import ban under Article XX(b), a panel must be satisfied that it brings about a material contribution to the achievement of its objective. Such a demonstration can of course be made by resorting to evidence or data, pertaining to the past or the present, that establish that the import ban at issue makes a material contribution to the protection of public health or environmental objectives pursued. This is not, however, the only type of demonstration that could establish such a contribution. Thus, a panel might conclude that an import ban is necessary on the basis of a demonstration that the import ban at issue is apt to produce a material contribution to the achievement of its objective. This demonstration could consist of quantitative projections in the future, or qualitative reasoning based on a set of hypotheses that are tested and supported by sufficient evidence.”73

71

Brazil: Tyres-Panel Report (n 64) [5.27].

72 73

Ibid [5.37].

WTO, Brazil: Measures affecting Imports of Retreaded Tyres – Report of the Appellate Body (3 December 2007) WT/DS332/AB/R [151].

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Here the Appellate Body underscored the long-term sustainability of a measure adopted by the parties and vis-à-vis the EC-Asbestos decision further lowered the burden of proof in environmental cases. Cuba reminded the parties in its oral statement during the Appellate Body hearing of the importance of the principle of sustainable development: “Cuba, in its statement at the oral hearing, expressed its agreement with the Panel’s findings that the Import Ban was necessary to reduce the exposure of human, animal, or plant life or health to risks arising from waste tyres. Cuba also emphasized the importance of the principle of sustainable development and environment preservation policies, and recalled that waste tyre management presents a challenge in particular for developing countries, given the significant environmental and economic costs it involves.”74

The reasoning of the WTO dispute settlement body in these cases, taken together, demonstrates that the objective of sustainable development has become an integral part of the world trading system. Legal arguments encompassing an integrated developmental and environmental approach have been made by the parties and accepted by the relevant dispute settlement organs. On the other hand, it is clear that the panels and the Appellate Body will not accept sustainable development as a trump card. It can not just be invoked in order to justify non-compliance with established WTO disciplines. On the other hand it is also not without legal value. It also shows that sustainable development is not a one-way relationship between developed and developing countries but rather promotes mutual understanding and can also be successfully employed by both groups. A solid legal understanding of the objective and its underlying principles, as well as the appropriate application of specific facts of each case embedded in a reasoned legal argument is required to make a successful sustainable development argument in world trade law.



3 New Instruments in Trade Law for Sustainable Development

A highly practical example of the integration of economic, social and environmental concerns (as envisaged by sustainable development) is found in the increasing use of impact assessment tools in the international arena.75 Impact assessments operate as a formalised consideration of the wider effects of particular policies (usually trade policies or development projects), and aim to ensure that trade and development decisions result from processes that promote sustainability and public participation. These tools come in various 74 75

Ibid [85].

For details see Gehring, Hepburn & Cordonier Segger (2007) 131 and Gehring (2007).

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forms, ranging in scope from environmental impact assessments and human rights impact assessments to the broadest tool, sustainability impact assessments. Although it remains unusual for any national development decision or regional or bilateral trade agreement to require some form of impact assessment, the European Union, the United States and Canada have all adopted the tool to some degree to be used either before or after the decision or agreement has been concluded. The 1992 Rio Declaration recognised the potential of impact assessment in Principle 17: “Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.”

At the international level, certain environmental treaties contain obligations to perform environmental impact assessments in situations where one country’s activity may flow across a border or when areas of common concern, such as the high seas76 or the Antarctic,77 are involved. The application of such instruments to trade agreements is relatively new, but developing rapidly, and in some instances the assessments include a regulatory dimension. In Canada, the Framework for Conducting Environmental Assessments of Trade Negotiations78 has been used since 2001 to conduct environmental assessments of new bilateral and regional trade negotiations, and since 2005 this has also been applied to investment agreements. The assessments seek to assist Canadian negotiators in integrating environmental considerations into the negotiating process (as envisaged by the Doha Development Agenda), and to address public concerns. The framework includes provisions for actively seeking public input into assessments from non-governmental organisations, businesses, indigenous peoples and the general public. Similarly, the Office of the US Trade Representative has conducted environmental reviews of all bilateral and regional trade agreements signed by the United States since 1999, in which regulatory impacts, public advice and potential impacts in the territory of the proposed new trading partner are taken seriously and addressed.79 Developing countries have, in some cases, also found such assessments useful for economic policy making. 76

United Nations Convention on the Law of the Sea, (signed 10 December 1982, entry into force 16 November 1994) 1833 UNTS 396, 21 ILM 1245.

77

Protocol on Environmental Protection to the Antarctic Treaty (opened for signature 4 October 1991, entry into force14 January 1998) 30 ILM 1461.

78

Department of Foreign Affairs and International Trade Canada, ‘Framework for Conducting Environmental Assessments of Trade Negotiations’ accessed 25 January 2008.

79

Office of the United States Trade Representative, ‘Environmental Reviews in FTAs’ accessed 25 January 2008.

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For instance, as discussed by the International Institute for Sustainable Development, Senegal recently found that stocks of certain species of fish with high market values were being seriously depleted through the use of trade impact assessment.80 Sustainability impact assessments are more complex, innovative studies which take economic, environmental and social impacts into account to provide a complete picture of the expected effects of a trade policy or project. They include target-related indicators, which attempt to measure sustainability against a set of defined goals, and process-related indicators, which are based on the principle that the process itself by which policies and decisions are adopted plays a substantial role in achieving sustainable development goals. Indicators of sustainability used in the assessments fall into three categories: • economic indicators, including average real income, fixed capital formation and employment rates; • social indicators, including poverty rates, health and education levels and equity; and • environmental indicators, including air and water quality indicators, biological diversity and natural resources.81 Sustainability impact assessments are mostly in use within the European Union, which developed a framework for analysis in 1999. This framework has since been applied to the WTO Doha Round negotiations and EU bilateral and regional trade agreements with Chile, Mercosur, the African-Caribbean-Pacific nations and the Gulf Cooperation Council nations. EU sustainability impact assessments place significant emphasis on consultation both within EU member states and in the third country trade partners. The assessments themselves are conducted by independent experts commissioned by the European Union, which subsequently receives a response paper from the European Commission. All results are made public.



4 Sustainable Development in the Doha Development Agenda

During the Seattle negotiations several countries made sustainable development related submissions and the public spotlight focussed on the trade and environment and the trade and development debates. The successful adoption of the Doha Ministerial Declaration resonated in some ways with these 80

International Institute for Sustainable Development, Environment and Trade: A Handbook (2nd edn UNEP, Geneve 2005) 112 accessed 25 January 2008.

81

European Commission, ‘Sustainability Impact Assessment’ accessed 25January 2008.

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submissions and discussions. Ministers agreed in Para. 6 of the Ministerial Declaration: “We strongly reaffirm our commitment to the objective of sustainable development, as stated in the Preamble to the Marrakesh Agreement. We are convinced that the aims of upholding and safeguarding an open and non-discriminatory multilateral trading system, and acting for the protection of the environment and the promotion of sustainable development can and must be mutually supportive. We take note of the efforts by Members to conduct national environmental assessments of trade policies on a voluntary basis. We recognize that under WTO rules, no country should be prevented from taking measures for the protection of human, animal or plant life or health, or of the environment at the levels it considers appropriate, subject to the requirement that they are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, and are otherwise in accordance with the provisions of the WTO Agreements. We welcome the WTO’s continued cooperation with UNEP and other inter-governmental environmental organizations. We encourage efforts to promote cooperation between the WTO and relevant international environmental and developmental organizations, especially in the lead-up to the World Summit on Sustainable Development to be held in Johannesburg, South Africa, in September 2002”82

As is clear from this excerpt, the DDA was intended to be informed by sustainable development objectives. Ministers recognized sustainable development as a fundamental goal of the WTO, and placed it into a strengthened context, referring to practical measures such as the need for cooperation with other international environment and development organizations in the lead-up to the WSSD. From the macro perspective, the Doha Declaration provides an indication that sustainable development objectives are starting to be understood as involving both environmental and social development actors and organizations. There are indications that states may be prepared to move away from the traditional “trade only” or “trade and environment only” approach. While expectations for a sustainable development infused WTO should be hedged because of recalcitrant powerful members, coherence between the preamble and the Appellate Body’s balanced and integrated definition is legally compelling.83 References to this objective in the Doha Ministerial Declaration clearly recognise environmental protection and social development aspects to be part of the mandate of a mainly economic organization.

82

Doha Ministerial Declaration (14 November 2001) WT/MIN(01)/DEC/1 accessed 25 Januarry 2008.

83

See Seattle proposals (all made after the Appellate Body’s US-Shrimp decision discussed above).

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Indeed, the Ministers went further, and sought to operationalise the sustainable development goal for the WTO itself. At paragraph 51, a mechanism was created to ensure that this objective would be translated into concrete action.84 In the organization and management of the work programme section of the Declaration, WTO member governments agreed that “[t]he Committee on Trade and Development and the Committee on Trade and Environment shall, within their respective mandates, each act as a forum to identify and debate developmental and environmental aspects of the negotiations, in order to help achieve the objective of having sustainable development appropriately reflected.”85 The initial proposal by Canada, that the Committee on Trade and Environment should debate the environmental aspects of the expected Seattle negotiations, was broadened to include the Committee on Trade and Development.86 It is unclear whether these two Committees will be able to fulfill their mandates to identify and debate environmental and development aspects of the negotiations in addition to helping to ensure that sustainable development can be appropriately reflected in the trade negotiations. The WTO clearly considers itself bound by its commitment to sustainable development as an objective, and arguably, may also be influenced by sustainable development in its role as an ‘interstitial norm’ in public international law. As such, the outcomes of trade negotiations may present opportunities to modify certain trade rules in order to ensure that they can better support sustainable development. Many caveats remain and these have become doubly apparent in subsequent Doha Round negotiations in Cancun and Hong Kong. At first there were high initial expectations as it was widely understood that the agenda underpinning the DDA was intended to place development priorities at the very heart of the new negotiations. However, in spite of recent Appellate Body and WTO statements on the importance of delivering on the development promises of world trade, and of ensuring that trade law contributes to the objective of sustainable development, the process has been inconsistent and repeatedly obstructed. While developing countries have made great efforts to ensure that their voices and interests are heard and taken into account, there has been little tangible advancement on important development issues. Similarly, progress has been scant in constructively addressing overlaps between trade and human rights questions or trade and environment questions, in a way that seamlessly integrates development interests.

84

Doha Ministerial Declaration (n 82) [51]; this section of the Ministerial Declaration is binding for the negotiations.

85

Ibid.

86

Ibid 3.

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5 Conclusion

The norm development is not concluded – the content of the concept of sustainable development itself is still contested. Furthermore, while Members of the WTO may now be bound by a particular reading of sustainable development objectives at the global level, this may not mean they feel obliged to develop “sustainable” trade laws or policies either internally, or in their further bilateral and regional trade treaties with other countries.87 According to the letter of international trade law, all countries are free to choose their own economic system and trade policies. However, where ‘discrimination’ is alleged, clashes with principles of the WTO will ultimately result in binding dispute settlement procedures for its Members. To ensure that international trade law can deliver on sustainable development in the current context, a constructive, integrated approach is needed to address overlaps between social development, economic development and environmental protection. This approach must focus specifically on achieving solid results for developing countries and for development in general.

87

See Hepburn, Gehring, Goh and Endicott (2007).

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Bibliography Bach et al (2002) C. Bach, et al., ‘Market Growth, Structural Change and the Gains from the Uruguay Round’ (2002) 8 Rev of Int’l Economics 295.

Boyle and Freestone (1999) A. Boyle and D. Freestone (eds), International Law and Sustainable Development: Past Achievements and Future Challenges (OUP, Oxford 1999).

Cordonier Segger (2004) M.C. Cordonier Segger, ‘Governing and Reconciling Economic, Social and Environmental Regimes’ in M C Cordonier Segger and C G Weeramantry, Sustainable Justice: Reconciling Economic, Social and Environmental Law (Martinus Nijhoff, Leiden 2004).

Cordonier Segger and Khalfan (2004) M.C. Cordonier Segger and A. Khalfan, Sustainable Development Law: Principles, Practices and Prospects (OUP, Oxford 2004).

Cordonier Segger and Leichner Reynal (2005) M.C. Cordonier Segger and M. Leichner Reynal (eds), Beyond the Barricades: An Americas Trade and Sustainability Agenda (Ashgate, Aldershot 2005).

French (2005) D. French, International Law and Policy of Sustainable Development (Manchester University Press, Manchester 2005).

Gehring (2007) M. Gehring, Nachhaltigkeit durch Verfahren im Welthandelsrecht (Duncker & Humblot, Berlin 2007)

Gehring, Hepburm and Cordonier Segger (2007) M. Gehring, J. Hepburn & M.C. Cordonier Segger, World Trade Law in Practice (Globe Law and Business Publishing, London 2007).

Hamilton and Whalley (1996) C. Hamilton and J. Whalley, The Trading System after the Uruguay Round (The Institute for International Economics, Washington DC 1996).

Handl (1995) G. Handl, ‘Sustainable Development: General Rules versus Specific Obligations’, in W Lang (ed), Sustainable Development and International Law (Graham & Trotman, London 1995).

Hepburn, Gehring, Goh and Endicott (2007) J. Hepburn, M. Gehring, M.P. Goh and M. Endicott, ‘Sustainable Development in Regional Trade and Investment Agreements: Policy Innovations in Asia?’ (CISDL Working Paper 2007) accessed 25 January 2008.

Hilf and Oeter (2005) M. Hilf and S. Oeter, WTO-Recht – Rechtsordnung des Welthandels (Nomos, Baden-Baden 2005). 296

chapter 3.1

sustainable development in world trade law

Hoekman and Kostecki (2001) B. Hoekman and M. Kostecki, The Political Economy of the World Trading System: The WTO and Beyond (OUP, Oxford 2001).

Hunter, Salzman and Zaelke (2001) D. Hunter, J. Salzman and D. Zaelke, International Environmental Law and Policy (2nd edn Foundation Press, New York 2001).

International Institute for Sustainable Development (2005) International Institute for Sustainable Development, Environment and Trade: A Handbook (2nd edn UNEP, Geneve 2005) 112 accessed 25 January 2008.

Jackson (1997) J.H. Jackson, The World Trading System – Law and Policy of International Economic Relations (2nd ed MIT Press, Cambridge 1997).

Martin and Winters 1996 W. Martin and A. Winters (eds), The Uruguay Round and Developing Countries, (CUP, Cambridge 1996).

Meadows et al.(1972) D.L. Meadows, et al, Limits to Growth (MIT Press, Cambridge 1972).

Narlikar (2005) A. Narlikar, The World Trade Organization: A Very Short Introduction (OUP, Oxford 2005).

Nordström and Scott (1999) H. Nordström and V. Scott, ‘Trade and Environmen’ (WTO’s Special Studies series #4 1999) accessed 25 January 2008.

Lowe (1999) V. Lowe, ‘Sustainable Development and Unsustainable Arguments’ in: A. Boyle and D. Freestone (eds), International Law and Sustainable Development: Past Achievements and Future Challenges (OUP, Oxford 1999).

Ostry (2002) S. Ostry, ‘The Uruguay Round North-South Grand Bargain: Implications for Future Negotiations’ in: D.L.M. Kennedy and J.D. Southwick, The Political Economy of International Trade Law (CUP, Cambridge 2002).

Safadi and Laird (1996) R. Safadi and S. Laird, ‘The Uruguay Round Agreements: Impact on Developing Countries’ (1996) 24 World Development 1223.

Sen (1999) A. Sen, Development as Freedom (OUP, Oxford 1999).

Steinberg (2002) R. Steinberg, ‘In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO’ (2002) 56 Int’l Org 339.

297

sustainable development in international and national law

United Nations Development Programme (2008a) United Nations Development Programme, Human Development Reports accessed 25 January 2008.

United Nations Development Programme (2008b) United Nations Development Programme, Making Global Trade Work for People (Earthscan Publications, London 2003) accessed 25 January 2008.

Vernon 1995 R. Vernon, ‘The World Trade Organization: A New Stage in International Trade and Development’ (1995) 36 Harvard ILJ 329.

Weiss and Schrijver (2004) J.F. Weiss and N. Schrijver (eds), International Law and Sustainable Development: Principles and Practice (Martinus Nijhoff, Leiden 2004).

WCED (1987) World Commission on Environment and Development, Our Common Future (OUP, Oxford 1987).

Table of Cases •C  ase Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgement) General List No 92 [1997] ICJ 7, (1998) 37 ILM 162. • W TO, Brazil: Measures affecting Imports of Retreaded Tyres – Panel Report (12 June 2007) WT/DS332/R. • W TO, Brazil: Measures affecting Imports of Retreaded Tyres – Report of the Appellate Body (3 December 2007) WT/DS332/AB/R. • W TO, European Communities: Conditions for the Granting of Tariff Preferences to Developing Countries – Appellate Body Report (20 April 2004) WT/DS246/AB/R. • W TO, United States: Import Prohibition of Certain Shrimp and Shrimp Products Sector – Panel Report (15 May 1998) WT/DS58/R. • W TO, United States: Import Prohibition of Certain Shrimp and Shrimp Products Sector – Report of the Appellate Body (20 September 1999) WT/DS58/AB/R. • W TO, United States: Import Prohibition of Certain Shrimp and Shrimp Products Sector – Recourse by Malaysia to Article 21.5 of the DSU (13 October 2000) WT/DS58/17. • W TO, United States: Import Prohibition of Certain Shrimp and Shrimp Products Sector, Recourse to Article 21.5 by Malaysia – Panel Report (15 June 2001) WT/DS58/RW. • W TO, United States: Import Prohibition of Certain Shrimp and Shrimp Products Sector, Recourse to Article 21.5 by Malaysia – Report of the Appellate Body (22 October 2001) WT/DS58/AB/RW. • W TO, United States: Standards for Reformulated and Conventional Gasoline – Report of the Appellate Body (29 April 1996) WT/DS2/AB/ RW.

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Table of Legislation National Law • Grundgesetz für die Bundesrepublik Deutschland (German Constitution).

International Instruments • ‘Agenda 21 (Annex 2)’ in Report of the UN Conference on Environment and Development Vol. I (13 June 1992) UN Doc A/ CONF.151/26 (Vol I); 31 ILM 874. • Committee on Trade and Environment, Report of the Meeting held on 6 July 2005 (2 September 2005) WT/CTE/M/40. • Committee on Trade and Environment, Trade in used and retreaded Tyres – Submission by Brazil (12 July 2005) WT/CTE/W/241. • Differential and More Favourable Treatment Reciprocity and Fuller Participation of Developing Countries (28 November 1979) L/4903, BISD 26S/203. • Doha Ministerial Declaration (14 November 2001) WT/MIN(01)/ DEC/1 accessed 25 January 2008. • ‘Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations’ 33 ILM 1143 accessed 25 January 2007. • Geneva Ministerial Declaration (20 May 1998) WT/MIN(98)/DEC/1 . • ‘Havana Charter For An International Trade Organization’, UN Conference on Trade & Development, Final Act and Related Documents (24 March 1948) UN Doc E/Conf 2/78 (1948). • ‘ILA New Delhi Declaration of Principles of International Law Relating to Sustainable Development’ (2002) 2 Intl Environmental Agreements 209. • ‘Johannesburg Declaration on Sustainable Development and Johannesburg Plan of Implementation’ in Report of the World Summit on Sustainable Development (4 September 2002) UN Doc A/CONF.199/L20. • Marrakesh Agreement Establishing the World Trade Organization (signed 15 April 1994, entered into force 1 January 1995) 1867 UNTS 4, 33 ILM 1144. • Ministerial Decision on Trade and Environment (15 April 1994) LT/UR/D-5/8, 33 ILM 1267 accessed 25 January 2008. • ‘Our Common Future’ UN World Commission on Environment and Development Rep (4 August 1987) UN Doc A/42/427. • ‘Permanent Sovereignty over Natural Resources’ UNGA Res 1803 (XVII) (14 December 1962) UN Doc A/Res/1803 (XVII).

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• Protocol on Environmental Protection to the Antarctic Treaty (opened for signature 4 October 1991, entry into force14 January 1998) 30 ILM 1461. • ‘Rio Declaration on Environment and Development (Annex 2)’, Report of the UN Conference on Environment and Development Vol. I (13 June 1992) UN Doc A/CONF.151/26 (Vol I), (1992) 31 ILM 874. • Singapore Ministerial Declaration (18 December 1996) WT/ MIN(96)/DEC, 36 ILM 218 accessed 25 Januarry 2008. • Summit of the Americas on Sustainable Development, Declaration of Santa Cruz de la Sierra (adopted 7 December 1996) accessed 25 January 2008. • Treaty of Amsterdam Amending the Treaty on European Union (signed 2 October 1997, entered into force 1 May 1999) [1997] OJ C 340/1 accessed 25 January 2008. •U  nited Nations Convention on the Law of the Sea, (signed 10 December 1982, entry into force 16 November 1994) 1833 UNTS 396, 21 ILM 1245. • Vienna Convention on the Law of Treaties (singed 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, 8 ILM 679.

Webpages • Department of Foreign Affairs and International Trade Canada, ‘Framework for Conducting Environmental Assessments of Trade Negotiations’ accessed 25 January 2008. • European Commission, ‘Sustainability Impact Assessment’ accessed 25January 2008. • ‘Lexikon der Nachhaltigkeit‘ accessed 25 January 2008. • Office of the United States Trade Representative, ‘Environmental Reviews in FTAs’ accessed 25 January 2008.

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Any Steps Towards Sustainability in International Investment Agreements? A Study of BITs of Nordic Countries and the US–Chile Free Trade Agreement Concerning the Potential to Conflict with Health and Environmental Measures Åsa Romson

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sustainability in international investment agreements

1 Background

The policy discussion on transnational investments tends to focus on the need for developing countries to attract foreign direct investments in order to bring capital, work opportunities and new technologies to develop their societies. States concluding international investment agreements (IIAs) expect them to contribute to a stable and predictable investment environment as a means to enhance foreign direct investments. However, in the implementation of sustainable development it is important to certify that the legal regimes of IIAs also support, or at least do not oppose, the environmental legal regimes at both national and international level. Still 20 years after the Brundtland Commission the integration of sustainable development into economic policy areas is still lacking in many respects. As this survey shows, the IIAs are one such example. IIAs aim to protect foreign investors’ rights from various forms of public administrative interference. This has implications for the incentives and ‘space’ for national regulation to protect health and environment. The issue came into a broad discussion with North America’s conclusion of the NAFTA in 1993 and the OECD proposal for a global investment agreement, MAI, in 1998. The issue is no less relevant today as the US concludes second generation IIAs based on the NAFTA with Latin American countries, and as the EU is about to start negotiations on a new type of IIA with several developing countries. The number of IIAs increased dramatically during the 1990s. UNCTAD today estimates the total number to be in excess of 2,700. The potential powers of IIAs have in the meantime increased considerably by the inclusion of rules on investor–state arbitration. Available statistics show that around 250 cases have been filed by investors since 1995. IIAs have been criticised by NGOs for strengthening investment protection to a point where it becomes harder for the host state to impose health and environmental regulations with any economic impact on foreign investors. NGOs also fear the investor–state arbitration mechanism where national environmental regulations could be tested in a forum created solely for the purpose of settling commercial conflicts. At the same time new types of clauses are becoming standard in the IIAs, clauses that focus on environmental regulations. This trend reflects an ambition to integrate sustainable development.

* 

Åsa Romson is doctoral student in Environmental Law at Stockholm University, Sweden.

UNCTAD 2006 reports the number of BITs to 2 495 and the number of preferential trade and investment agreements (PTIAs) to 232 as of the end of year 2005. As the report includes double taxation treaties in its definition of IIA, it reaches a higher number than I refer to here.

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1.1 Aim and Scope of the Article

In this article I will analyse some recent IIAs in order to discuss the trend to support, or at least not harm, regulations safeguarding health or environment. I have chosen two different kinds of IIAs, the traditional European approach exemplified by Nordic bilateral investment agreements (BITs) and the US–Chile free trade agreement (FTA) which further develops the much discussed North America Free Trade Agreement (NAFTA). The analysis is restricted to four aspects of the IIAs that have potential implications for health and environmental regulations: • t he aim of the agreement; • t he core standards of fair and equal treatment, national treatment and expropriation; • t he investor-state dispute settlement if transparent to civil society in the host state; • any explicit implications for technology transfer. I shall explore how the different standards of the chosen IIAs might affect environmental regulation, its implementation and development. My belief is that such discussion is one crucial part in the broader work to form legal investment protection regimes which integrate the concept of sustainable development.



2 BITs by the Nordic Countries

The Nordic countries have to vary degrees been active in concluding BITs with foreign counterparts. Sweden, Finland and Denmark each have over 50 bilateral investment agreements in force, while Norway and Iceland have 14 and 7 respectively. Norway has not concluded any new BIT since the mid nineties nor entered into investment agreements included in some of the FTAs of the EFTA. Although Island has little experience of BITs, several have been concluded since the turn of the millennium, including investment agreements and EFTA–FTAs. After a period concentrating on multinational investment agreements, Denmark has turned its attention to BITs again. Sweden and Finland have both concluded over 20 BITs each since the millennium. None of the Nordic states has been party to a dispute with any of the investors under these agreements. However, some businesses have based their legal argument on Nordic BITs when challenging measures put in place by public bodies abroad. As a survey of available sources shows, three awards were given 

These were the main concerns in discussions on environment-investment relations under negotiations for MAI and current evolution of IIA jurisprudence.



According to foreign ministry websites and reports to UNCTAD, available online at .

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by arbitration tribunals emanating from BITs between Sweden and Latvia, Norway and Hungary and Norway and Lithuania respectively.  There are also four cases pending before arbitral tribunals emanating from bilateral treaties between Denmark and Egypt, Norway and the Czech Republic, Sweden and Romania and Finland and Estonia. The OECD Draft Convention on Protection on Foreign Property from 1967 and ongoing work of the OECD investment committee form the basis of the Nordic BITs. The standard set of clauses has changed slightly over the years but the wording varies between counties and treaties. Other studies confirm similarity of content between inter alia British and Swiss BITs. However, Sweden, Finland and Denmark redesigned their model BIT a few years back. Norway is currently in the process of doing so, and safeguards for environmental regulations are one of issues where new language is proposed. At the time of writing, this rewritten model remains to be made public.



2.1 Reformulation of the Preamble

The great majority of the BITs the Nordic countries have in force have a short preamble stating the desire to intensify economic cooperation and maintain fair and equitable conditions for investments without mentioning the issue of sustainable development or the environment. Looked at in isolation the aim of those treaties could be interpreted as nothing but support for foreign investments. The preamble of new Nordic model BITs has been expanded in different ways. The Danish preamble, for instance, now includes the wording: RECOGNIZING that a fair and equitable treatment of investments will stimulate the flow of private capital between the Contracting Parties, and promote sustainable development. [italics mine]

As the concept of sustainable development is used in many ways, its meaning is open to interpretation. Without knowing the intention of the parties one could argue that sustainable development includes stimulating the flow of capital, which does not add much to the aim of the treaty. On the other hand, one could 

Swembalt v. Latvia; Telenor v. Hungary and Parkerings Compagniet v. Lithuania. The multilateral investment agreement the Energy Charter Treaty was another legal ground for claims by a Nordic company in the case of Nykomb Synergetics v. Latvia. Except for Parkerings Compagniet v. Lithuania, where impacts on the UNESCO classified area of the inner city were highlighted, no environmental issues were raised by the responding state in these cases.



Helnan International Hotels v. Egypt, ICSID case ARB/05/19; Czechoslonor v. Czech Republic (unknown procedural rules); Micula v. Romani, ICSID case RB/05/20 and OKO Osuuspankkien Keskuspankki Oyj and others v. Republic of Estonia, ICSID case ARB/04/6.



Peterson (2004).

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also argue that since the parties have mentioned sustainable development, the importance of environmental preservation is an added value. Both the Finish and Swedish model BITs include the following: NOTING that the development of economic and business ties can promote respect for internationally recognised labour rights, and AGREEING that these objectives can be achieved without relaxing health, safety and environmental measures of general application…[italics mine]

Here the treaty’s aim is specified in two respects, socially and environmentally. First, there are no intentions to interfere in a restrictive way with internationally recognised labour rights, or in health, safety or environmental measures of general application. It does, however, tie in with ideas of foreign investment and environmental action as mutually supportive, and does not indicate that the objectives of investment protection in any way are restricted by such social or environmental concerns. By stressing that environmental measures do not need to be relaxed the Finish–Swedish model BITs seek to deter growth of ‘pollution havens’ (i.e., countries which soft-pedal on environmental regulations to attract investment). Other IIAs have been more explicit, using ‘non-lowering of standards clauses’. Such clause is the Article 12(1) of the US model BIT which states: The Parties recognize that it is inappropriate to encourage investment by weakening or reducing the protections afforded in domestic environmental laws. Accordingly, each Party shall strive to ensure that it does not waive or otherwise derogate from, or offer to waive or otherwise derogate from, such laws in a manner that weakens or reduces the protections afforded in those laws as an encouragement for the establishment, acquisition, expansion, or retention of an investment in its territory. If a Party considers that the other Party has offered such an encouragement, it may request consultations with the other Party and the two Parties shall consult with a view to avoiding any such encouragement.

This language stems from the NAFTA (article 1114). A similar article, but not restricted to environmental laws, is under consideration for inclusion in the preamble of new free trade agreements of the EU: 1. The Parties shall not encourage foreign direct investment by lowering domestic environmental, labour or occupational health and safety legislation and standards or by relaxing core labour standards or laws aimed at protecting and promoting cultural diversity. 2. Accordingly, a Party shall not waive or otherwise derogate from, or offer to waive or otherwise derogate from such legislation and standards as an encourage-

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ment for the establishment, acquisition, expansion or retention of an investment or an investor in its territory. 3. Where a Party considers that an actual or proposed measure of another Party is or would be inconsistent with this provision, it may request consultations with that Party. The Parties shall consult in an effort to avoid any such encouragement.

These ‘non-lowering of standard’ provisions thus require the parties to engage in dialogue should one of them suspect the other of lowering standards of environmental regulation in order to boost foreign investment. The new parts of the preambles to the Finish and Swedish model BITs stop at a point where parties agree to refrain from relaxing regulation. It is however clear that the ideas and inspiration underlying the expanded preambles come from the dialogues on an international level. Communication with the Swedish Foreign Ministry indicates that the general review of Swedish foreign policy, focused on improving coherence, persuaded them to include these concerns in the expanded preamble. A certain amount of pressure was in this regard also brought to bear by the federation of Swedish labour organisations, LO.



2.2 Traditional Approach in Core Paragraphs

Some of the core provisions in modern IIAs concern fair and equitable treatment, the national treatment, expropriation and right of investors to international arbitration against host states. All these IIA areas could outweigh environmental regulations or measures. Fair and equitable treatment provision has been crucial in NAFTA jurisprudence in cases concerning environmental measures. Fair and equitable treatment is long-standing international principle of foreign investment law. Outside outrageous or shocking situations its content is however unclear and its standard hard to define. It covers non-denial of justice, transparency, lack of arbitrariness and respect of basic expectations.10 IIAs phrase the fair and equitable treatment differently. Some connect it to the minimum standard of treatment. The Nordic BITs in general do not refer to any international standard. Of the new model BITs only the Swedish mentions fair and equitable treatment: ‘[I]n no case shall a Contracting Party award treatment less favourable than that required by international law’. Current Swedish BITs put it differently:



Council of EU, General Secretariat, Note for the Attention of the 133 Committee, 28 July 2006



See for example Tecmed v. Mexico; also the pending NAFTA-cases Gallo v. Canada, Glamis Gold v. U.S., Chemtura v. Canada (documents available online at governmental web pages).



See for example Sornarajah (2004) pp. 332

10

The OECD Working Paper on International Investment No 2004/3 gives a comprehensive view.

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In no case shall a Contracting Party award treatment less favourable than that required by international law binding on the parties. (2003 Sweden – Algeria BIT) [E]nsure fair and equitable treatment...consistent with the recognized principles of international law, the municipal law of the contracting party and the provisions in this agreement as applicable (2004 Sweden – Ethiopia BIT)

The different wordings of Nordic BITs concerning an international standard of fair and equal treatment reflect the diverse attitudes of states towards this area of international law in general.11 Since most Nordic BITs do not expressly connect fair and equitable treatment to an international standard it is left to the arbiters to interpret the precise meaning of this provision in their case. Fair and equitable treatment can be interpreted quite broadly, and include close scrutiny of administrative procedures, as in the Pope & Talbot case where the investor was awarded damages because of the procedure of permits and quotas for softwood lumber. The IIA provision on expropriation is another legal ground commonly used in investor claims that concern environmental measures. Some cases concern decisions to establish nature protection areas, but a more typical situation is denial or revocation of permits or licences necessary for the investor’s operation.12 Thus the provision applies also to measures other than transfer of property and it protects investments not only in tangible assets but in trademarks, concessions, know-how and other intangible economic quantities. These assets can be indirectly expropriated if environmental regulations harm their economic value, thus providing for compensation according to the IIA.13 In NAFTA jurisprudence these situations are considered ‘regulatory takings’ and criteria have evolved to help differentiate between compensable and noncompensable situations (see comments below on the expropriation regulations in the US–Chile FTA). At this point it is sufficient to know that the expropriation provisions in the Nordic agreements cover both direct and indirect expropriation. There are no affirmations of host states’ regulatory power in environmental or health matters except for the vague formulation in the preamble. Nor do the Nordic BITs include an exemption clause to avoid interpretations of environmental regulations as ‘regulatory taking’ constituting an obligation to redress company losses. Concerning arbitration the clauses in Nordic BITs in general allow (after notice of the host state 3 or 6 months earlier) for the investor to use dispute settlement on at least ICSID or UNCIRAL terms. Arbitration on these terms is made by three arbiters for an ad hoc decision and if nothing else is prescribed the procedure and decision are secret. There nothing in the Nordic BITs, 11

The different opinions on sovereignty and treatment of aliens are commented by many, see for example Malanczuk (1997) p. 235 ff.

12 13

See for example on the latter: Tecmed v. Mexico; Glamis Gold v. U.S. or Gallo v. Canada.

See Fauchald (2007) for a discussion also on environmental aspects on the compensation issue

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including the new model BITs, indicating that the Nordic states intend any transparency in such a process, nor for the non disputing state party to involve civil society or the public at large. The well-known Nordic position on greater transparency in public affairs has evidently not reached the province of BITs. Summing up, there are no changes to fair and equal treatment, expropriation and dispute settlement in the revised model BITs. There are no clarifications or exemptions aiming to mitigate possible negative impacts on environmental regulation, and no trends even to demand transparency in investor–state arbitration.



2.3 No Incentives for Technology Transfer

There is no general objective in the Nordic BITs to support technology transfer of environmental friendly techniques to the domestic business community. From a sustainable development point of view that is a weakness considering the importance given to the issue by various international environmental conventions and the Rio Declaration. But do the BITs hinder technology transfer? All Nordic BITs guarantee that investments from the other contracting party will be treated no less favourably than investments made by its own investors (the principle of national treatment). This means inter alia that special requirements on foreign companies to use a more environmental friendly technique than domestic firms are impossible.14 As technology transfer can be one reason for a developing country to let foreign companies to compete against domestic firms, the national treatment clause can be a problem. A common way for developing countries to secure technology transfer is to require foreign companies to work in joint ventures with domestic firms. In their new model BITs Finland and Denmark both include acquisition under the national treatment clause, which probably deny joint venture requirements. The Swedish model BIT does not include acquisition in the national treatment. The new Nordic model BITs also contain specific restrictions of some performance requirements. Neither Contracting Party shall mandate or enforce in its territory measures on investments by investors of the other Contracting Party, concerning purchase of materials, means of production, operation, transport, marketing of its products or similar orders having discriminatory effects. (Denmark–Indonesia BIT 2006, article 3(4)

14

But according to Sornarajah (2007), that is not the case if the investment protection in the IIA refers to investments done ‘in accordance with laws and regulations’. Such phrase exists in most Nordic BITs.

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The only example in this survey of a host state promising to actively support development of domestic small and medium sized enterprises is the Finland– Tanzania BIT of 2001 which states in article 3 paragraph 5, Tanzania may grant limited incentives to its own investors in order to protect small and medium sized business… provided such incentives do not significantly affect the investments and activities of investors of the other contracting party.

Thus, technology transfer of environmentally friendly technology to the domestic business community is a non issue in Nordic BITs. The trend – with some exceptions – is to be restrictive and not allow host states to rely at least on some types of performance requirements.



3 The US–Chile Free Trade Agreement

The free trade agreement between US and Chile went into force in January 2004. It is regarded as an elaborated version of the ten year older NAFTA concluded by the US, Canada and Mexico. It covers trade and investment issues as well as cooperation in environment and labour issues. The US–Chile FTA does not seem to have rendered any claims yet. The analysis here is limited to chapter 10 covering investment protection and chapter 19 covering environment.



3.1 Environmental Chapter Without Teeth

Like NAFTA, the US–Chile FTA has a special agreement on environmental protection that connects to the investment regulations; in the US–Chile FTA the environmental agreement is a chapter of the FTA while with NAFTA it is a separate agreement, American Agreement on Environmental Cooperation (NAAEC). These regulations do not include setting standards of environmental protection, but aim to secure that state parties do not fail to effectively enforce the environmental laws. Thus they are similar to non-lowering of standard clauses, but also aim at active implementation of environmental regulations. The objectives of chapter 19 in the US–Chile FTA are to contribute to the Parties’ efforts to ensure that  trade and environmental policies are mutually supportive and to collaboratively promote the optimal use of resources in accordance with the objective of sustainable development; and to strive to strengthen the links between the Parties’ trade and environment policies and practices to further the trade expanding goals of this Agreement, including through promoting non-discriminatory measures, avoiding disguised barriers to

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trade, and eliminating trade distortions where the result can directly benefit both trade and the environment.

This rather vague objective makes the US–Chile FTA significantly less concrete in its environmental ambitions than its predecessor, and the focus is clearly on smoothness of private economic relations rather than the importance of appropriate environmental regulations. The NAAEC (both in the preamble and in its objectives) targets specific environmental concerns. However, in the US–Chile FTA it is explicit in the investment chapter article 10.1 paragraph 2, that regulations in other chapters prevail to the extent of any inconsistency which strengthens the effect of what is regulated in chapter 19 in a way not seen in NAFTA. The core obligation of the US–Chile FTA chapter 19 on environment is article 2(1)a: A Party shall not fail to effectively enforce its environmental laws, through a sustained or recurring course of action or inaction, in a manner affecting trade between the Parties, after the date of entry into force of this Agreement.

This is the only obligation in chapter 19 where the parties have access to the state-to-state dispute settlement system of the agreement. A party can, as an ultimate step, request an arbitral panel to solve the matter, and for independent experts on environmental law and international trade to be appointed to serve on it. A similar procedure exists in NAAEC but has so far never been used by the parties. An important feature of NAAEC that has not been transferred to the US–Chile FTA is the citizen’s submissions procedure of articles 14 and 15, whereby individuals and NGOs may submit complaints about the enforcement of environmental laws of a party. Until September 2007, 63 submissions had been made and 13 factual records published.15 However, it is difficult to estimate impacts on environmental law enforcement and the procedure has been criticized for being largely ineffective in comparison to similar instruments such as the UN ECE Convention on Access to Information, Public Participation in Decision Making and Access to Justice (also Aarhus convention).16 Although weak, a citizen’s submissions procedure in NAAEC increases the chances of public pressure to sort out problems relating to insufficient environmental standards and unenforced environmental regulations. This is even more important considering the reluctance of states to bring matters of environmental law enforcement to international courts or arbitration panels. In this respect the US–Chile FTA clearly is a step backwards.

15

According to the official website www.cec.org last visited 3 September 2007.

16

Fitzmaurice (forthcoming 2008).

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3.2 Development of the Fair and Equitable Treatment and National Treatment Provisions

Concerning the core standards of fair and equal treatment, national treatment and expropriation the US–Chile FTA seams in some regards to have broader scope than the Nordic BITs. At the same time, the US–Chile FTA specifies its provisions in greater detail than the NAFTA, thus making far reaching interpretation less likely. The provision on fair and equitable treatment in the IIAs of the US is specified to be a part of the minimal standard of treatment which the US also states to be customary international law. However, as noted above, these standards are unclear in international law, one point of disagreement being whether the number of IIAs with these standards in themselves constitute the customary international law. Thus, in combining the fair and equal treatment clause with the minimal standard of treatment, the scope appears to be more restrictive. But at the same time, arguing that IIA practice speeds up the evolution of customary international law makes it again vague and unclear in scope. At one point, however, the US–Chile FTA clearly seems to have restricted the scope of the fair and equitable treatment clause; breaches of other provisions in the treaty are explicitly excluded from establishing a breach of the fair and equal treatment clause. This restriction became necessary after the NAFTA ruling in the S.D. Myers case where the breach of national treatment provision by Canadian regulations on PCB waste was considered to be in breach of the fair and equal treatment provision. As the national treatment clause in the US–Chile FTA covers the establishment and it regulates the right to entry into the country of the other party. It also specifies that the treatment accords ‘in like circumstances’, meaning that different operation conditions can apply to different operators if inter alia the environmental sensitivity is different (so-called ‘origin neutral differential treatment’). In the US environmental review this inclusion (which existed already in the NAFTA) is highlighted as an important addition to safeguard environmental measures.17 Since the regulatory authorities in the Nordic countries also expect operators to encounter dissimilar operating conditions it is an open question why it was not added to the Nordic BITs.



3.3 Clarifying Indirect Expropriation and Regulatory Taking

Annex 10-D of US–Chile FTA elucidates the provisions on expropriation insofar as they regard indirect expropriation. Article 4(a) states that

17

United State Trade Representative 2003, p30.

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The determination of whether an action or series of actions by a Party, in a specific fact situation, constitutes an indirect expropriation, requires a case-by-case, factbased inquiry that considers, among other factors: i) the economic impact of the government action, although the fact that an action or series of actions by a Party has an adverse effect on the economic value of an investment, standing alone, does not establish that an indirect expropriation has occurred; ii) the extent to which the government action interferes with distinct, reasonable investment-backed expectations; and iii) the character of the government action.

Also in respect of this ‘clarification’ it is hard to say whether it expands or restricts the scope of the indirect expropriation regulation in comparison to earlier IIAs and jurisprudence. In saying that the effect on the economic value cannot alone establish indirect expropriation but that the character of the governmental action is an factor, sections (i) and (iii) are nudging interpreters away from what has been called ‘the sole effect doctrine’ according to which the effect alone is the decisive factor and the public purpose of environmental measures is not taken into account. Section (ii) on possible interference with investment-backed expectations seems to my observation to be a crucial issue to the execution of environmental regulations. In at least two disputes over spatial planning in which the investors prevailed, such considerations were decisive to the awards. In both cases subnational public bodies denied building permits in accordance with the law, while national public bodies were giving positive signals about the projects.18 The three factors mentioned in the article stem from the US law of takings, but are likewise found in various arbitration awards on expropriation. Here it must be noted that the US law of takings and the demand for compensation whenever public regulations allegedly caused the value of private property to diminish, have sparked a wide debate on the possible chilling effect of environmental regulations.19 It is also questioned if it is suitable to make this doctrine international through the IIAs.20 This debate ranges across many issues, including the ideological purpose of the taking doctrine and why tribunals differ on what they deem to constitute a taking. For the sake of brevity, this intense debate will not be discussed further here. Article 4 in the annex continues with a paragraph specifically on regulatory actions:

18

Metalclad v. Mexico and MTD v. Chile; but compare to Maffezini v. Spain in which the investor failed in this regard.

19

See for only some examples Blumm (1995) and Been and Beauvaits. (2003).

20

For slightly different views, see Newcombe (2005) and Been (2002-2003), among others.

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(b) Except in rare circumstances, non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety, and the environment, do not constitute indirect expropriations.

This is probably an important clarification for environmental IIA cases. Even if various arbitration panels have issued reasonings on non-compensable state interference in economic conditions within the scope of this paragraph it should make it less uncertain for the state parties to develop environmental regulations. The US–Chile FTA was concluded with the experience of a few years of NAFTA arbitration and this language come close to what the US has been successfully arguing in defence of its position in, inter alia, the Methanex case. Although the article 4(b) makes it clear that environmental law measures in normal cases do not constitute expropriation, it is still unclear what the ‘rare circumstances’ could be. Further problems arise if we want to define the meaning of ‘nondiscriminatory’ action. Thus it is a clarification that intends to minimize the risk for environmental regulations, but it is still unclear if those intentions will be fulfilled.21



3.4 Innovations in Dispute Settlement

Another innovation in the US–Chile FTA of relevance for this study applies to the investor–state dispute settlement system. The treaty is among the first IIAs to include provisions on amicus curiae and transparency of proceedings. Article 10.19(3) gives an arbitration tribunal authority to accept and consider amicus curiae submissions from a person or entity that is not a disputing party. This is a welcome innovation in light of the Methanex case where the amicus curiae submitted by the Canadian based NGO International Institute of Sustainable Development and US based NGOs Bluewater Network, Communities for a Better Environment and Centre for International Environmental Law, and will encourage a more extensive public and academic debate connected to the proceedings. Article 10.20 instructs the respondent state to make the material in the proceedings, including pleadings and minutes, available to the public. These provisions improve the investor-state dispute settlement systems for IIAs considerably. NGO criticism for letting decisions with public and environmental impacts be made behind closed doors has obviously had some effect.

21

Compare Fauchald (2007) who maintains that this provision “is likely to prevent successful challenges to environmental measures under expropriation clauses”.

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3.5 Narrow Scope for Technology Transfer

The US environmental assessment made prior to the conclusion of the US–Chile FTA summarizes the impacts of the agreement as favouring environmental friendly technology.22 It is a conclusion seemingly based on a view of the agreement would as encouraging trade in new technologies and accelerating time-to-market. There is no particular analysis of the general prohibition of performance requirements. The US–Chile FTA echoes in this regard the NAFTA in setting strict boundaries for performance requirements, some of them even stricter. According to NAFTA article 1106(2) measures that in a nondiscriminatory way require an investment to use a technology to meet generally applicable health, safety or environmental requirements are exempted from the prohibition. This provision was not transferred to the US–Chile FTA which only contains the more narrow exemption from domestic content requirements in article 10.5.3(c): Provided that such measures are not applied in an arbitrary or unjustifiable manner, or do not constitute a disguised restriction on international trade or investment, [the paragraphs forbidding requirements on domestic content], shall not be construed to prevent a Party from adopting or maintaining measures, including environmental measures: i) necessary to secure compliance with laws and regulations that are not inconsistent with this Agreement; ii) necessary to protect human, animal, or plant life or health; or iii) related to the conservation of living or non-living exhaustible natural resources.

Thus, the US–Chile FTA might put constraints on transfers of environmentally friendly technologies to local companies by prohibiting performance requirements with such content. Also requirements for joint ventures are prohibited. In an agreement between two states of significantly different economical strength this could be a disadvantage for transfer of environmentally friendly technologies and thus for sustainable development.



4 Conclusions

What do these recent IIAs indicate in terms of trends, and what is their relationship to national regulations on health and environmental protection, transparency and technology transfer? To recapitulate, the new Nordic model BITs do make general references to environmental issues. It is expressed that the investment protection objectives can be fulfilled without 22

U.S Trade Representative 2003, executive summery.

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relaxing general health and environmental regulations. This inclusion in the Swedish and Finnish model BITs shows that there is some, if only limited, attention to the tricky balancing of investment protection and concepts of sustainable development. The core provisions are not changed, however, and no provisions are included to mitigate possible negative impacts of enforcing those investment principles for host state environmental regulations. One reason for this might be that the Nordic BITs, like most European BITs, do not cover the establishment phase impacts on host country policies are consequently expected to be minor. However, most of the environmental IIA cases brought to arbitration so far have not centred on establishment phase disputes. The Nordic countries are famous for (or want to be famous for) their policies of public openness and transparency, but in the BITs they make no demands of transparency on dispute settlement systems involved in investor–state arbitration. It seems that BITs were negotiated mainly on behalf of the Nordic investors and not as lawmaking treaties that need to balance investor interests against the regulations. Maybe this will change if a case is brought by a foreign investor against any of the Nordic countries touching upon a sensitive issue. The US–Chile FTA on the other hand connects much more visibly to environmental regulation. It contains a special chapter on environment and references how to deal with environmental regulations in alleged expropriation cases. The overall impact of the agreement is also stronger since it regulates trade as well as investments. Investors in the US are more likely to be aware of their investment rights than their Nordic counterparts, making the clarifications set out in the US agreement potentially more important since they most probably will be relied on in arbitration. In comparison with its predecessor, the NAFTA, US–Chile FTA specifies its core provisions, thus making interpretation which expands the scope less likely. Especially the clarification on regulatory actions not being indirect expropriation may provide some shelter for environmental regulations. However, comparing the agreement to more recent NAFTA jurisprudence evolved after the conclusion of the US–Chile FTA, some writers argue that it is less restrictive and stipulates a more unclear line in acceptance of regulatory power.23 Among the more promising steps is the development of more transparency in the investor–state dispute settlement system. Public and civil organisations in the host state can at least see what is going on in cases that may concern health or environmental issues. Erasing the citizen’s submissions procedure – a small but available opportunity for individuals and NGOs to complain of lack of enforcement of environmental regulations – is a step backwards. On technology transfer the study finds no specific objectives in the IIAs to facilitate the transfer of environmental friendly techniques to the local business community. But the regulation on constraining performance requirements is strengthened. It seems that the importance of technology transfer is something 23

See comments of Methanex by Mann (2007).

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states still prefer to talk about in connection with environmental agreements than do something about in investment agreements. A final reflection refers to the function of non-lowering of standard clauses – in the Nordic BITs and coming EU agreements – and the clauses of duty to enforce environmental regulation – in the US–Chile FTA. The inclusion of those clauses could be interpreted in two ways. First, the investment agreements must be a real threat to measures enacted to protect health and environment, otherwise there would be no need for the clause. Second, the clauses preclude the unwanted effect. It should be acknowledged that there is little evidence of traditional investment agreements in any case having caused a lowering of environmental standards. Some writers argue that this is not even likely.24 But even more important, if traditional IIAs are a real threat the non-lowering of standards clause or a duty to enforce environmental law as constructed in the examples here will hardly be able to avert negative effects. The main reason for this is that the clauses lack enforcement. The functions of these clauses are at the best interpretation guidelines for arbitration panels. They can never guarantee that the IIA will not conflict with measures based on national or international environmental law. For that to be the case, the core elements of fair and equal treatment, national treatment and expropriation need to be given another meaning.25 The ‘green’ clauses, however, reflect a desire among states to start to integrate some aspects of sustainable development in traditional economic law. The next step should be to make that wish do something substantial.

24 25

See for one argumentation on that line: Wälde and Kolo (2001).

See the Chairman’s Note on Environment and Related Matters and Labour in the MAI negotiations.

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Bibliography Been (2002-2003) V. Been; Does an international regulatory takings doctrine make sense? 11 N.Y.U. Envtl L.J. 50 (2002-2003).

Been and Beauvaits (2003) V. Been & J. C. Beauvaits; The Global Fifth Amendment? NAFTA Investment Protections and the Misguided Quest for an International “Regulatory Takings” Doctrine, 78 N.Y.U L.Rev. 35 (2003).

Blumm (1995) M. Blumm; The End of Environmental Law? Libertarian Property, Natural Law and the Just Compensation Clause in the Federal Circuit; 24 Envtl. L. 172 (1995).

Fauchald (2008) O. K. Fauchald; International Investment Law and Environmental Protection, in Yearbook of International Environmental Law 2007, vol. 18 (2008).

Fitzmaurice (2008, forthcoming) M. Fitzmaurice, Environmental Justice through International Complaint Procedures?: Comparing the Aarhus Convention and the North American Agreement on Environmental Cooperation, in J. Ebbesson and Ph. Okowa (eds.), Environmental Law and Justice in Context (CUP, forthcoming 2008).

Hobér (2007) K., Hobér; Investment Arbitration in Eastern Europe: In Search of a Definition of Expropriation; New York, 2007.

Malanczuk (1997) P. Malanczuk; Akehurst’s Modern Introduction to International Law; 1997.

Mann (2005) H. Mann; Some New Wine in Some New Bottles, August 2005; available online at (last visited 2007-08-20).

Newcombe (2005) A. Newcombe; The Boundaries of Regulatory Expropriation in International Law; 20:1 ICSID Review – FILJ 2005.

Peterson (2004) L. E. Peterson; Bilateral Investment Treaties and Development PolicyMaking; IISD Winnipeg, 2004.

Sornarajah (2004) M. Sornarajah; The International Law on Foreign Investment; Cambridge; 2004.

Wälde and Kolo (2001) T. Wälde and A. Kolo; Environmental Regulation, Investment Protection and ‘Regulatory Taking’, in International Law; 50 Int’l & Comp. L.Q. 2001.

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Table of Cases • Metalclad  Corporation v. Mexico, ICSID Case No. ARB(AF)97/1, Award 13 Aug 2000; and decision from the Supreme Court of British Colombia May 2001, both available online at last visited 2007-08-20. • Methanex  Corporation v. United States, UNCITRAL, Award 3 Aug 2005, available online at U.S State Department website last visited 2007-08-20. • Swembalt  v. Latvia, UNCITRAL, Award 23 Oct 2000, published in K. Hobér. • Nykomb  Synergetics Technology Holding AB v. Latvia, Award 16 Dec 2003, available online at last visited 2007-08-20. • Parkerings-Compagniet  AS v. Lithuania, ICSID Case No. ARB/05/8, Award 11 Sep 2007, available online at last visited 2007-10-04. • Técnicas  Medioambientales Tecmed, S.A. v. Mexico, ICSID Case No. ARB (AF)/00/2, Award 29 May 2003, available online at last visited 2007-08-20. • Telenor  v. Hungary, ICSID ARB/04/15, Award 13 Sep 2006, available online at last visited 2007-08-20. • Maffezini  v. Spain, ICSID Case No. ARB/97/7, Award on merits 13 Jun 2000, available online at last visited 2007-10-04. • MTD  v. Chile, ICSID Case No. ARB/01/7, Award 24 May 2004 (including ICSID annulment proceeding in 2007), available online at last visited 2007-08-20.

Treaties • Denmark – Indonesia BIT, 2006. • Finland – Tanzania BIT, 2001. • Finland – Kyrgystan BIT, 2003. • Finland model BIT, 2001. • North American Free Trade Agreement (NAFTA), 1993. • American Agreement on Environmental Cooperation (NAAEC), 1993. • Netherlands – Costa Rica BIT, 1999. • Sweden – Mauritius BIT, 2004. • Sweden model BIT, 2003. • Sweden – Algeria BIT, 2003. • Sweden – Ethiopia BIT, 2004. • US – Chile FTA, 2003. • US model BIT, 2004.

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Abbreviations BIT FTA MAI NAAEC NAFTA NGO IIA

Bilateral Investment Treaty Free Trade Agreement Multilateral Agreement on Investment American Agreement on Environmental Cooperation North American Free Trade Agreement Non Governmental Organisation International Investment Agreement

Public Reports • OECD, Chairman’s Note on Environment and Related Matters and Labour, 9 March 1998, DAFFE/MAI(98)10. • UNCTAD 2001, Series on Issues in International Investment Agreements Environment. • UNCTAD 2006, IIA Monitor no 2, International Investment Agreements. • United State Trade Representative 2003, Final Environmental Review of the U.S-Chile Free Trade Agreement, available online at (last visited 2007-04-30).

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Transparency, Participation and Accountability in International Economic Dispute Settlement A Sustainable Development Perspective Nathalie Bernasconi-Osterwalder

chapter 3.3



transparency, participation and accountability in international economic dispute settlement

1 Introduction

Access to information and public participation are essential building blocks for sustainable development, preparing citizens to become informed decision makers, offering a basis for stimulating creative solutions to environmental, social and developmental problems, and providing a foundation for building consensus on critical priorities. Numerous international documents have affirmed the importance of transparency and public participation, and the need to institutionalize these elements in the move towards sustainable development. One of the messages in the revolutionary 1987 report, Our Common Future, commonly known as the Brundtland Report, was that active public participation is a prerequisite for achieving sustainable development and solving the environmental problems of the world. The Rio Declaration on Environment and Development and Agenda 21, adopted at the United Nations Conference on Environment and Development held in Rio de Janeiro in 1992, and other international agreements, such as the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention), adopted in 1998, further develop the concept in the environmental context by identifying three principles, or pillars, of public participation: access to information; participation in environmental decision-making; and access to justice. Additionally, a trend has emerged over the past few years towards recognizing the freedom of information as an independent freedom. Many countries have adopted freedom of information legislation in order to implement the right to freedom of information as a legally enforceable right to government-held documents. These legal frameworks facilitate the incorporation of good governance principles into rulemaking and policy making, greatly expanding the role of the public in decision-making. Much of the progress towards increased transparency and public participation so far has been made at the domestic levels. However, in an increasingly inter-connected world, some decision-making is shifting from the national to the international level, and to institutions and processes that largely remain secretive and inaccessible to the public. The shift of decision-making from the national to the international level is particularly striking in the area of international economic law, which includes the agreements of the World Trade Organization (WTO) and the international investment treaty framework. The relevance of trade and investment treaties for domestic policy-making is reinforced by the fact that the negotiated multilateral, regional, and bilateral agreements are often complemented by powerful dispute settlement mechanisms that ensure compliance and enforcement. These dispute settlement processes are typically binding, and can result in a condemnation of a national measure or law and in economic sanctions or awards for compensation. *

Nathalie Bernasconi-Osterwalder is managing attorney of the Geneva Office of the Center for International Environmental Law (CIEL). This background note was prepared by Nathalie Bernasconi-Osterwalder with input from Sofia Plagakis, Samitha Rao and William Patterson.

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The WTO, the successor of the General Agreement on Tariffs and Trade (GATT), regulates trade in goods and services, and sets out rules in the area of international property rights. WTO Agreements aim at “disciplining” an extremely wide range of domestic measures and policies, including export and import restrictions, but also domestic measures that in some way affect trade, such as environmental and health measures. By casting its web broadly, the WTO penetrates deeply into the domestic policy-making of its members and has the final say as to what is permitted and what is not. To enforce its rules, the WTO has a binding dispute settlement mechanism, as laid down in its Rules and Procedures Governing the Settlement of Disputes (DSU). Rulings in disputes are first made by a panel and can be appealed on points of law. Rulings are automatically adopted unless there is a consensus amongst WTO members to reject a ruling. This is one of the main differences with the previous GATT dispute settlement under which rulings could only be adopted by consensus, meaning that a single opposition vote, including of the losing party, could block the ruling. The WTO dispute settlement system is generally perceived as one of the most effective in the world because it is binding and provides for trade sanctions. If a party is found to violate one of the many WTO rules, the challenging WTO member can request the permission of the dispute settlement body to impose trade sanctions, meaning, for instance, that the winning member can increase tariffs on products emanating from the “losing” member. Another important area of international economic law relates to transnational investment, as incorporated in International Investment Agreements (IIAs). These agreements typically include rules for the protection of foreign investors and investments. More recent IIAs provide for mandatory and binding international arbitration, often providing both State-to-State as well as investor– State arbitration. Investor–State arbitration allows foreign investors to challenge host governments for alleged violations of host State obligations under the IIA. While recourse to formal State-to-State dispute settlement under a IIA or an investment chapter is rare, the use of investor–State dispute settlement procedures against host governments by the foreign investors themselves has become more common. Like the State-to-State procedures, the investor–State rules on arbitration are compulsory in their jurisdiction and the disputing parties are bound by the results, which can consist in a damages award against the host State. IIAs can refer to different sets of arbitration rules and institutions. The rules most frequently referred to are those under the International Centre for Settlement of Investment Disputes (ICSID) and those under the United Nations Commission on International Trade Law (UNCITRAL). Other arbitration 

IIAs are understood here to include investment chapters incorporated in Free Trade Agreements (FTAs).



Available at: http://icsid.worldbank.org/ICSID/Index.jsp; and http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration.html.

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rules include, for example, the International Chamber of Commerce (ICC), the Arbitration Institute of the Stockholm Chamber of Commerce, or the London Court of International Arbitration (LCIA). ICSID rules are exceptional in that they were specifically developed for disputes between host States and investors, as opposed to other procedural rules which were created so as to address private commercial disputes between private parties. Over the past decade, the number of disputes initiated by investors against host states has soared, challenging a broad range of domestic measures and actions, including measures taken for environmental or public health reasons. Typically, investors claim violations of non-discrimination principles, or that they have been expropriated or treated below the “minimum standard”. Since the principles set forth in IIAs are cursory and broadly formulated, the tribunals have played an accordingly important role in shaping international investment law -- with direct impacts on domestic policy-making. Despite of their significant impact on domestic policy making, including in areas such as environmental regulation, protection of public health and safety, and the provision of public services, international trade and investment dispute settlement processes continue to lack transparency and public participation, This chapter will argue that access to information and public participation provide an important basis for sustainable development and should be present not only in domestic but also in international processes, including economic dispute settlement processes. It will examine the evolution of transparency and public participation elements in international trade and investment dispute settlement and identify areas for improvement.



2 Access to Information and Public Participation as a Human Right and a Prerequisite for Achieving Sustainable Development



2.1 The Linkage Between Access to Information, Public Participation and Sustainable Development

Governments and institutions governed by transparency, openness, accountability and community participation are more capable of reconciling the needs of present and future generations, of balancing private and public interests, and harmonizing economic development with social and environmental needs. Thus, improved access to information and participation in decisionmaking will more likely lead to overall sustainable development. This has been recognized again and again since the international community in 1992 adopted Principle 10 of the Rio Declaration on Environment and Development, which articulates public access to information, participation 

The Rio Declaration on Environment and Development (June 3-14, 1992). (United Nations publication, Sales No. E.73.II.A.14 and corrigendum).

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in decision-making, and access to justice as key principles of environmental governance and sustainable development: Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.

Thus, Principle 10 of the Rio Declaration asserts that each individual must have access to information, the opportunity to participate in decision-making, and access to redress and remedy. While Principle 10 relates specifically to environmental decision-making at the national level, Agenda 21, the action plan that accompanied the Rio Declaration, is much broader in that it emphasizes access to information, participation and justice for civil society at the national and international levels as essential for sustainable development. Since 1992, regional and national initiatives around the world have sought to implement the commitments made by governments under Rio Principle 10 and Agenda 21. Several regions have adopted instruments that advance public access and participation in processes of environmental decision making and policy making, and in some cases create binding obligations on States.  Collectively, the regional initiatives demonstrate the emergence of a global foundation for public involvement that expands upon Principle 10 and Agenda 21. Negotiated by UNECE countries, but open to other countries, the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) sets up the first international, legally binding mechanism for access to information, public participation in decision making and access to justice in environmental matters. Adopted June 25, 1998, in Aarhus, Denmark, and entering into force on October 30, 2001, this remains the most important binding application of Principle 10 of the Rio Declaration. Hailed by former UN Secretary-General Kofi Annan as “the most ambitious venture in environmental democracy undertaken under the auspices of the United Nations,” the Aarhus Convention, ratified by 40 coun

Examples include the 1993 North American Agreement on Environmental Cooperation (NAAEC) which promotes transparency, participation and accountability in North America, or the 1998 Memorandum of Understanding (MOU) between the Republic of Kenya, the United Republic of Tanzania and the Republic of Uganda for Cooperation on Environment Management. For more information, see Carl Bruch (ed.), The New “Public”: The Globalization of Public Participation (ELI 2002). Available at http://www.elistore. org/reports_detail.asp?ID=10662.



For the complete text of the Aarhus Convention, see http://www.unece.org/env/pp/welcom.html.

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tries, as well as by the European Community, has been considered a new kind of environmental agreement linking environmental rights and human rights. Article 1 makes it clear that the objective of the Convention is to contribute to the protection of the right of every person of this and future generations to live in an environment adequate to his or her health and well-being. Since the inception of the Aarhus Convention, the parties recognized that the principles applicable to national authorities also needed to be applied at the international level and committed themselves to promote the application of the principles of the Convention in international environmental decision-making processes. At their second meeting, held in Almaty, Kazakhstan in May 2005, the parties adopted a set of guidelines on promoting the principles of access to information, public participation in decision-making and access to justice in international “forums” dealing with matters relating to the environment.



2.2 A Rights-based Approach to Access to Information and Public Participation

Not only have access to information and participation been recognized as essential to achieving the goal of sustainable development, they have increasingly been recognized as human rights. Indeed, in its first session in 1946, the United Nations General Assembly recognized that “Freedom of information is a fundamental right and is the touchstone of all freedoms to which the United Nations is consecrated.” More recently, in 2006, the InterAmerican Court on Human Rights, in a case involving access to information in the context of a logging project, confirmed that access to government information is a human right. Specifically, the Court found that Chile violated the right to freedom of thought and expression guaranteed in the American Convention on Human Rights by failing to disclose information to civil society organizations. NGOs in Chile had been partially denied information by the Foreign Investment Committee regarding an investment contract concerning logging of virgin forests in Patagonia. Relying on past cases the Court found that the right to freedom of expression, as embodied in Article 13 of the American Convention on Human Rights, includes the right to “seek, receive and impart” information and stated that “access to public information is a requisite for the very exercise of democracy.” The Court explained that, “by expressly stipulating the right to ‘seek’ and ‘receive’ ‘information,’ Article 13 of the Convention protects the right of all individuals to request access to State-held information, with the exceptions permitted by the restrictions established in the Convention.” The Court also clarified  

G.A. Res. 1/59, ¶ 1, U.N. Doc. A/RES/1/59 (Dec. 14, 1946).

Inter-Am. Ct. HRs, Claude Reyes et. al. v Chile, Judgment (Sept. 19, 2006).



Id. at 76, citing Case of López Álvarez. Judgment of February 1, 2006. Series C No. 141, ¶163.



Id. at 77.

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that information should be provided without the need to prove direct interest or personal involvement in order to obtain it.10 The case reflects an emerging trend over the past years towards the recognition of freedom of information as a freedom in its own right. Freedom of information forms the basis for democracy, public participation and government accountability, and entails a positive obligation for States to ensure access to information, particularly information held by government. The confidentiality of documents is thus the exception rather than the rule and restrictions are carefully circumscribed. Many countries have adopted freedom of information legislation and some have enshrined the freedom into their constitutions in order to implement the right. The public’s right of access to information has been officially recognized at the national level as early as 1766, when Sweden passed its Freedom of the Press Act – part of its national constitution.11 As of 2006, at least 68 countries had freedom of information laws.12 Likewise, several intergovernmental organizations, such as the World Bank, the United Nations Development Program and the European Union have adopted documents to guarantee access to information.13 All of these developments relate to a more general trend towards promoting “good governance”. All attempts to define the notion of good governance include the elements of transparency, participation, and accountability. It is evident that the international economic framework, too, must incorporate the principle of good governance if it is to contribute to the achievement of sustainable development.



3 The Sustainable Development Aspects in International Economic Dispute Settlement



3.1 The Growing Importance of International Economic Dispute Settlement

The international trade and investment framework is evolving quickly. The creation of the World Trade Organization in 1995 and the frantic negotiation of bilateral and regional trade and investment agreements over the past decade have resulted in an entirely new economic legal order that has generated an unexpected and unprecedented surge in trade and investment disputes, both between States and between investors and host States. With these developments, decision-making has shifted from the domestic to the international level in a way and to an extent that was probably not imagined by the governments 10 11

Id.

See Tryckfrihetsförordningen [TF] [Constitution] 2:1 (Swed.).

12 13

Banisar (2006).

Mendel (2003).

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when they entered into these international economic deals and subjected themselves to international dispute settlement.



3.2 Trade Disputes at the WTO

As of 30 August 2007, 366 cases have been initiated since the creation of the WTO’s dispute settlement mechanism in 1995 (compared to 136 disputes initiated at the International Court of Justice since 1947).14 Adopted during the Uruguay round of trade negotiations in 1994, the Understanding on Rules and Procedures Governing the Settlement of Disputes (also known as the Dispute Settlement Understanding, or DSU) sets forth the principles and procedures by which the WTO handles disputes amongst its members. The DSU essentially builds upon the dispute settlement procedures set forth by its predecessor, the GATT 1947.15 Whereas the GATT provisions were loosely formulated, however, the DSU provides a formal, structured system for resolving disputes that results in binding decisions and can lead to economic sanctions. While under the GATT, parties could block the adoption of panel reports, the WTO panel reports can only be rejected by consensus, something that has never happened since the WTO’s inception. WTO disputes often involve far-reaching public interest issues, including environmental protection, health, food safety, and human rights. For example, over the past twelve years, a number of WTO dispute settlement panels have decided on the legality of national measures taken to protect the environment. In fact, the first WTO Appellate Body decision ever, the US–Gasoline decision, was in an environmental dispute. The US–Gasoline decision forced the US to change its laws after Venezuela and Brazil challenged a measure enacted by the US Environmental Protection Agency (EPA) to comply with certain compositional and performance specifications for gasoline under the Clean Air Act. In another landmark case, US –Shrimp, a WTO panel and the Appellate Body examined a US measure to protect sea-turtles. The US Endangered Species Act16 lists all seven species of sea turtles as endangered or threatened, and the US was concerned that conventional methods of shrimp harvesting were devastating sea turtle populations. In an effort to minimize the impact of shrimp harvesting on sea turtle populations, the US prohibited the importation of shrimp that was not harvested using so-called Turtle Excluder Devices (TEDs), a simple and 14

See the following website from the WTO for the most current information on disputes: http://www.wto. org/english/tratop_e/dispu_e/dispu_status_e.htm#yr2007. From May 22, 1947 until May 15, 2007, 136 cases were entered in the General List of the ICJ. See the following website for the most current information on the ICJ Disputes: http://www.icj-cij.org/docket/index.php?p1=3.

15

Understanding on Rules and Procedures Governing the Settlement of Disputes Article 3.1, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, in Results of the Uruguay Round of Multilateral Trade Negotiations 1 (1994), 33 I.L.M. 1226 (1994) [hereinafter DSU].

16

U.S. Endangered Species Act, 16 U.S.C. §§1531-1544.

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relatively inexpensive modification to shrimp nets that drastically decreases sea turtle mortality rates. This measure was challenged by India, Malaysia, Pakistan, and Thailand as violating the General Agreement on Tariffs and Trade (GATT).17 As a consequence of the WTO decision in this case, the US had to change its practice relating to import requirements on shrimp. More recently, the US, Canada and Argentina, the largest producers of genetically modified crops, challenged an EC moratorium on the approval of biotech products.18 This decision involved many important sustainable development and governance issues, including the relationship between multilateral environmental agreements and WTO rules. In particular, the EC-Biotech panel concluded that WTO panels did not have the responsibility of taking into account environmental treaties that were not ratified by all WTO members. Given that this congruence of membership is not present for any of the existing environmental treaties, the panel effectively disregarded the principle of mutual supportiveness between environmental and trade regimes – a decision heavily criticized in a report by the International Law Commission on the Fragmentation of International Law.19 But environment-related cases have not only been brought against wealthy developed countries. Most recently, the European Communities challenged a Brazilian measure banning the import of retreaded tyres -- tyres consisting of used tyre casings and given new treads. The accumulation of waste tyres has significant environmental and public health implications. In many countries, the sheer volume of waste tyres has overwhelmed efforts to implement environmentally responsible disposal programs. The impacts of tyre wastes are exacerbated in tropical areas, where piles of discarded tyres serve as fertile breeding grounds for diseases and disease carrying mosquitoes. Brazil enacted import restrictions on retreaded tyres due to concerns that retreaded tyres wear out faster than new tyres and cannot be retreaded, thus resulting in a shorter life span and increased tyre waste.20 Not only environmental policies, but also public health policies can be challenged in the WTO. An early WTO case, EC–Hormones, involved a challenge by the US and Canada to the EC’s import ban on beef that had been treated with certain types of hormones. The EC was concerned about the possible carcino17

Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products [Complainants: India, Malaysia, Pakistan, Thailand], WT/DS58/AB/R, adopted 6 November 1998.

18

Panel Report, European Communities – Measures Affecting the Approval and Marketing of Biotech Products [Complainants: United States, Canada, Argentina], WT/DS291/R, WT/DS292/R, WT/DS293/R, adopted 29 September 2006.

19

International Law Commission, Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law, U.N. Doc A/CN.4/L.682 (13 April 2006) (finalized by Martti Koskenniemi).

20

Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres [Complainant: European Communities], WT/DS332/AB/R, issued 3 December, 2007.

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genic effects of consuming hormone-treated meat and banned the production and importation of such beef. The US and Canada challenged these import restrictions under the WTO’s Sanitary and Phytosanitary Agreement 21 and won. The EC has upheld the ban nevertheless and conducted further studies to prove that beef treated with hormones could be carcinogenic, but has been “paying” in form of increased tariffs imposed by the United States and Canada over almost a decade. Among other things, the Panel and Appellate Body decisions in this case dealt with issues such as the precautionary principle at length. Another example of a WTO health case is EC–Asbestos, which resulted in the first decision to uphold a measure under the GATT’s environmental and health exceptions clause.22 In that case, Canada, a leading producer of chrysotile asbestos, had lost in its challenge to France’s ban on the importation and domestic use of carcinogenic chrysotile asbestos and products containing chrysotile asbestos, a substance clearly proven to be carcinogenic. These cases and others demonstrate that decisions are made at the WTO that affect the domestic policy space and the daily lives of the citizens of its members. Whether these types of public interest issues should be subject to WTO dispute settlement or whether the decisions described here were reasonable or not, are not the questions discussed here. What is important for the purpose of this chapter is the acknowledgment that cases are decided in the WTO that directly affect domestic regulation and policy relating to sustainable development, and that based on this fact, the general public has an interest in knowing what is being decided and how.



3.3 International Investment Disputes

While international trade disputes are brought primarily (though not exclusively) to the WTO, international investment arbitration, both under treaties and contracts, is scattered and regulated by varying sets of procedural rules. International investment arbitration is one of the fastest growing areas of international law and international dispute settlement. The increase in treaty-based arbitration is particularly noteworthy, due to the steadily increasing number of bilateral and regional investment treaties (international investment agreements – IIAs). These treaties establish standards of treatment for investors investing in another State (the host State) and, in some cases, allow these investors to sue the host State if they believe an investment standard has been violated.

21

Agreement on Sanitary and Phytosanitary Measures (SPS Agreement), Annex 1A to the Marrakesh Agreement Establishing the World Trade Organization (Apr. 15, 1994), in The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations, 33 I.L.M. 1125 (1999).

22

Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos Containing Products [Complainant: Canada], WT/DS135/AB/R, adopted 5 April 2001.

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In 2006, the number of known treaty-based investor–State dispute settlement cases amounted to 258. Out of the total of 258 cases, 160 were filed with the International Centre for Settlement of Investment Disputes (ICSID). Most other cases were brought under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL) or the Arbitration Rules of the Stockholm Chamber of Commerce.23 The subject matter of the disputes in investment arbitrations often raises important public policy issues. Many investment treaties give the investor the possibility to challenge host State measures with international tribunals without prior exhaustion of local remedies. Foreign investors have increasingly availed themselves of this mechanism over the past decade, leading to a steep increase in investment arbitration, often involving environmental and public health protection, human rights and other public interest issues. For example, in one case, Loewen v. US, an investment tribunal constituted under the North American Free Trade Agreement (NAFTA), even scrutinized the structural judicial framework of Mississippi.24 The first few prominent environment-related investment cases were brought under the NAFTA’s investment chapter. One of the early cases was Metalclad v. Mexico, an environmental case involving the construction and operation to build and operate a hazardous waste landfill.25 In Metalclad, the US based Metalclad corporation sued Mexico, claiming that Mexico had violated NAFTA’s investor protection provisions by denying construction permits, thus effectively prohibiting the operation of the hazardous waste facility. The tribunal found, among other things, that the State’s actions constituted an illegal expropriation and ordered the Mexican government to pay compensatory damages. 26 Another case brought under NAFTA, S.D Myers v. Canada, concerned Canada’s export ban of polychlorinated biphenyls (PCBs). 27 In application of the Basel Convention on the Transboundary Movement of Hazardous and other Waste, Canada banned the exportation of PCB wastes from Canada to the US in 1995. S.D. Myers, a US corporation specializing in PCB waste treatment, challenged the export ban under NAFTA’s investor protection provisions in 1995, and won. More recently, also under NAFTA, the Methanex Corporation, a Canadian company, challenged the Californian ban of the gasoline additive MTBE that is believed to be carcinogenic. In 1999, California began to phase out MTBE because of groundwater contamination. Methanex sought US $970 million in

23

International Investment Rulemaking, supra note 28.

24

The Loewen Group, Inc. and Raymond L. Loewen v. United States of America, ICSID Case No. ARB(AF)/98/3, see also North American Free Trade Agreement Charter, Chapter 11, U.S.-Mex.-Can., 32 I.L.M. 289 (1993).

25

Metalclad Corporation v. Mexico, ICSID Case No. ARB(AF)/97/1.

26 27

A portion of this award was eventually set aside by the Supreme Court of Canada.

S.D. Myers, Inc. v. Canada, NAFTA/UNCITRAL Tribunal, Award on the Merits, 13 November 2000.

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damages against the United States.28 The NAFTA tribunal dismissed Methanex’s claim and awarded the US $4 million to the United States to cover arbitration costs. Although the claim was dismissed, the case remains highly relevant for the important public interests involved, the amount claimed and the fact that the Methanex tribunal was the first investment tribunal to accept amicus curiae briefs, as described further below. Investor–State disputes can also involve human rights issues. For example, a number of cases have involved water delivery and access to water. In 1993, Argentina privatized Buenos Aires’ water utility. The utility was purchased by Aguas Argentinas, a French consortium. Although Aguas Argentinas won the bid by promising high rate cuts, the company actually raised rates and cut access for many poor residents. The Argentine economy collapsed in 2001 and Aguas Argentinas responded by demanding a fixed exchange rate for debt repayment and a significant rate increase. The Argentine government, in economic turmoil, refused and Aguas Argentinas submitted a claim against Argentina to the International Center for the Settlement of Investment Disputes (ICSID) based on bilateral investment treaties and alleging losses from the financial crisis.29 This case is still ongoing. Another water-related case was brought by the Bechtel Corporation against Bolivia.30 The Bechtel Corporation controlled the water utilities in Cochabamba, Bolivia, but was forced to leave due to street riots over its rate increases. The government had to resort to martial law to restrain the protests and the Bechtel contract was cancelled. Bechtel Corporation brought a US $50 million claim against Bolivia under a bilateral investment treaty before ICSID to recover its financial losses. The Bechtel Corporation opposed public participation in the arbitration process and attempted to prohibit Bolivia from releasing details of the case. After much pressure of the general public, the Bechtel Corporation finally dropped its case. A case filed by the Biwater Corporation (a British investor) against Tanzania also involved water delivery services.31 Biwater Corporation had acquired a tenyear water management contract for the Dar es Salaam water system. When the Tanzanian government terminated the contract because the company had failed in its commitment to provide clean drinking water to millions of people, Biwater responded by initiating an investment dispute against Tanzania, demanding compensation for the alleged violation of the bilateral investment treaty between the UK and Tanzania. 28

Methanex Corporation v. United States of America, In the Matter of An Arbitration under Chapter 11 of the North American Free Trade Agreement and the UNCITRAL Arbitration Rules, Final Award of the Tribunal, August 7, 2005.

29 30 31

Aguas Argentinas, S.A. v. Argentine Republic, ICSID Case No. ARB/03/19.

Aguas Del Tunari, S.A. v. Republic of Bolivia, ICSID Case No. ARB/02/3.

Case No. ARB/05/22 before the International Centre for Settlement of Investment Disputes Biwater Gauff (Tanzania) Limited v. United Republic of Tanzania, ICSID Case No. ARB/05/22.

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In sum, even more than in the WTO, investment cases involve a wide range of sustainable development issues with important implications for domestic policy-making. In addition to the substance of the issues involved, investment arbitrations can result in multi-million dollar awards against host governments. In Argentina, for example, over 40 investment arbitrations have been initiated which, cumulatively, could amount to several billion dollars. Thus, investment arbitration can have serious economic and social consequences for the citizens of defendant countries. Under the current system, however, taxpayers and other interested citizens typically have only limited access to information about these cases (if any). Despite the fact that these cases can involve challenges to domestic laws and regulations and can result in important monetary liabilities, the processes leading to these awards remain largely secretive. The following section examines the various stages of trade and investment dispute settlement and identifies the areas where transparency and public participation should be improved.



4 Lack of Transparency and Public Participation in International Economic Dispute Settlement

Even though trade and investment disputes involve profoundly important issues of public policy and international law, including human rights, the environment, and human health, they lack transparency, opportunities for public input, and accountability. Transparency and public participation are the basis for elaborating and working towards more sustainable trade and investment regimes. Transparency lets the sun shine on actions of investors and governments, and exposes protectionism, corruption and other problems arising in conjunction with foreign investment and trade policies. Transparency and public participation form the basis for an informed discussion as to how to address challenges relating to the intersection between economic development on the one hand and social aspects and environmental protection on the other. In other words, if investment and trade are to contribute to development that is sustainable, related processes, including those for the settlement of disputes, need to be transparent and allow for opportunities for public input. Unfortunately, however, international trade and investment dispute settlement processes still lack transparency, public participation and accountability. This deficiency should be systematically addressed and institutionalized.

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4.1 Dispute Settlement Procedures at the World Trade Organization (WTO)

Compared to its predecessor the GATT, the WTO has improved transparency in the dispute settlement context and, to some extent, has even become more participatory, albeit on an entirely ad hoc and unpredictable basis. Nevertheless, given its considerable economic and public policy implications, WTO dispute settlement still lacks transparency in many ways. The WTO is relatively transparent at the initial stage of dispute settlement, systematically posting requests for consultation and the subsequent requests for establishment of a panel on its website. This way, citizens can know a case has been initiated, the reasons for the request, the measures at issue and the legal basis for the complaint. One can register and be informed electronically when a case is initiated. The constitution of the panel is also notified to members by the WTO secretariat and posted on the website. After the case has been initiated, things become less transparent. While the DSU allows parties to make their own submissions public, there is no obligation to do so, and they are never posted on the WTO websites, unlike party submissions filed at the International Court of Justice, for example. 32 Only a few members systematically post their pleadings on their government web sites. Canada and the United States, and most recently Brazil, have made their pleadings public immediately after filing. The EU also makes pleadings public but only after the hearing. In general, oral proceedings are also kept confidential under the DSU.33 The panel and Appellate Body reports, on the other hand, are posted on the WTO 32

DSU, supra note 16 at Article 18.2: “Written submissions to the panel or the Appellate Body shall be treated as confidential, but shall be made available to the parties to the dispute. Nothing in this Understanding shall preclude a party to a dispute from disclosing statements of its own positions to the public. Members shall treat as confidential information submitted by another Member to the panel or the Appellate Body which that Member has designated as confidential. A party to a dispute shall also, upon request of a Member, provide a non-confidential summary of the information contained in its written submissions that could be disclosed to the public.”

33

Id. at Article 4.6, 5.2, app. 3.3. Article 4.6 reads “[c]onsultations shall be confidential, and without prejudice to the rights of any Member in any further proceedings”; Article 5.2 reads “[p]roceedings involving good offices, conciliation and mediation, and in particular positions taken by the parties to the dispute during these proceedings, shall be confidential, and without prejudice to the rights of either party in any further proceedings under these procedures”; app. 3.3 reads “[t]he deliberations of the panel and the documents submitted to it shall be kept confidential. Nothing in this Understanding shall preclude a party to a dispute from disclosing statements of its own positions to the public. Members shall treat as confidential information submitted by another Member to the panel which that Member has designated as confidential. Where a party to a dispute submits a confidential version of its written submissions to the panel, it shall also, upon request of a Member, provide a non-confidential summary of the information contained in its submissions that could be disclosed to the public.”

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website. As of August 30, 2007 the WTO held open hearings in only two out of the 366 disputes to date (although it should be noted that not all of these reached the hearing stage in the first place). The first open hearing was held in a follow-up dispute to the famous EC–Beef Hormones case in September 2005 and September/October 2006 and in the Airbus–Boeing dispute.34 In both cases the public was invited to observe the panel hearing via closed-circuit television in a separate room at the WTO (real-time in the Hormones hearings and later-intime in the Airbus–Boeing hearings). Given that the open hearings proceeded smoothly and did not involve any technical or other problems, it is possible that open hearings will become more frequent. At the same time, it is quite evident that without clear rules, WTO members in practice will pick and choose depending on their role in the cases. The EC, for instance, had agreed to open hearings in the EC–Beef Hormones case but was opposed in the Brazil–Retreaded Tyres case, even though Brazil was favourable to open hearings.35 Finally, the WTO also lacks an explicit reference to the possibility for the public to submit friends of court (or amicus curiae) briefs. Amicus curiae briefs are accepted in many judicial systems. Submitted to the court by someone who is not a party to the dispute, they provide additional legal or factual information in an ongoing dispute. In 1998 the WTO Appellate Body in the landmark US–Shrimp case for the first time recognized the panels’ authority to accept and consider amicus curiae briefs from civil society.36 Since that case, WTO dispute settlement panels and the Appellate Body itself have accepted unsolicited information from third parties in a number of instances. The Appellate Body has made clear, though, that neither panels nor the Appellate Body have any legal duty or obligation to accept or consider amicus curiae brief.



4.2 International Investment Arbitration

This section will focus primarily on the ICSID and UNCITRAL Rules as they are the most commonly used. ICSID uses two sets of rules: one for disputes between parties to the ICSID Convention37; the other set of rules applies to disputes in which only the State of the investor or the respondent State 34

United States – Continued Suspension of Obligations in the EC – Hormones Dispute, DS320-21; European Communities – Measures Affecting Trade in Large Civil Aircraft, DS316-17.

35

Brazil – Measures Affecting Imports of Retreaded Tyres, DS332.

36

Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products (“U.S.Shrimp”), WT/DS58/AB/R, adopted 6 November 1998, DSR 1998:VII, 2755; Panel Report, United States Import Prohibition of Certain Shrimp and Shrimp Products (“U.S.-Shrimp”), WT/DS58/R and Corr.1, adopted 6 November 1998, as modified by the Appellate Body Report, WT/DS58/AB/R, DSR 1998:VII, 2821.

37

These are: the 2006 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (“ICSID Convention”); and the 2006 Rules of Procedure for Arbitration Proceedings (“ICSID Arbitration Rules”).

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is a party to the ICSID Convention.38 The International Centre for Settlement of Investment Disputes (ICSID), established in 1966 under the World Bank to resolve investment disputes between governments and foreign investors, saw its first treaty-based investor-to-State arbitration award in 1990, almost 25 years after its creation.39 In April 2006, ICSID implemented a series of changes to all of its Arbitration Rules. The changes included, for example, expedited review of requests for dismissal of unmeritorious claims; access of third parties to proceedings; publication of awards; amicus curiae participation; and disclosure requirements of arbitrators. These are the first significant changes to ICSID’s Arbitration Rules since the Convention came into force in 1966. After ICSID Rules, the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules (UNCITRAL Arbitration Rules) are thought to be the second most used arbitration rules today for resolving disputes between investors and host States. It is estimated that about 30 percent of all investment cases to date have used the UNCITRAL Rules. 40 The 1976 United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules (UNCITRAL Arbitration Rules) were primarily used initially to resolve commercial arbitration between private parties. Only more recently have they begun to be used in arbitrations between foreign investors and host States pursuant to Bilateral Investment Treaties (BITs) -- in ways that were not anticipated by their drafters. A revision of the current rules is presently taking place, which arguably should take into account this development over the past few years. One of the biggest problems in investment arbitration is that it is often impossible to know that a claim has been filed. Thus, it is difficult to even know when a government is being challenged. The ICSID system is an exception in this context because it requires the Secretary-General to maintain a register for each request for arbitration. 41 In practice, the ICSID Secretariat publishes on its website the name of parties involved in the dispute; the subject matter; the date 38

These are the 2006 ICSID Arbitration (Additional Facility) Rules (“Additional Facility Rules”). While the discussion here focuses on the ICSID Convention and Arbitration Rules, it should be noted that the ICSID Arbitration (Additional Facility) Rules are very similar to the ICSID Rules of Procedure discussed. For example, the rules with respect to open hearings and amicus curiae submissions are identical. With respect to hearings, Rule 39(2) of the Arbitration (Additional Facility) Rules (as amended in 2006) is identical to Rule 32(2) of the ICSID Rules. Rule 41(3) of the Arbitration (Additional Facility) Rules and Rule 37(2) of the ICSID Arbitration Rules are also identical; both allow submissions from non-disputing parties.

39

Asian Agricultural Products Ltd. v. Sri Lanka, Case No. Arb/87/3, June 27, 1990.

40

Investor-State Disputes Arising From Investment Treaties: A Review, February 2006, UNCTAD/ITE/ IIT/2005/4, page 5, available at http://www.unctad.org/en/docs/iteiit20054_en.pdf.

41

ICSID Convention, supra note 47 at Article 36(3), “The Secretary-General shall register the request unless he finds, on the basis of the information contained in the request, that the dispute is manifestly

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of registration; and the composition of the tribunal; as well as any published decisions. However, the actual notice of arbitration is not posted and it is not easy to find out what the investor is alleging. By contrast, under UNCITRAL Rules, cases can be initiated entirely “behind the scenes”, and they often are. UNCITRAL Rules neither provide that the notice of arbitration be made known to the public, nor do they provide any basis for a registration system. Both ICSID and UNCITRAL Rules are silent as to the disclosure of the pleadings and evidence. As a consequence, the arbitration materials, including the pleadings, are not subject to a confidentiality obligation unless the tribunal orders otherwise. However, any party to a dispute may request the tribunal to issue a confidentiality order, even against the will of the disputing government. For example, in the Biwater versus Tanzania arbitration, the ICSID tribunal issued a confidentiality order despite the fact that the government of Tanzania had argued that the issue of water delivery involved important public interests and that it wished to make documents public to its citizens. Under existing ICSID Arbitration Rules, oral hearings are treated as entirely private matters and, thus, are only public if both parties agree. Even under the revised ICSID Rules, which seem slightly more favourable towards public hearings, a tribunal recently did not permit open hearings because the investor (Biwater) had opposed. 42 The UNCITRAL Rules, too, abide by the general rule that hearings are to be held in camera, unless the parties agree otherwise. 43 The Methanex tribunal, for example, confirmed this understanding, holding that petitioners of amicus briefs could not attend the hearings unless the parties consented otherwise. 44 In that case, the parties later gave their consent to public hearings, which were broadcast on closed-circuit TV. The ICSID Arbitration Rules do not require the consent of the parties for the publication of arbitration awards. Each party is thus free to publish the award. However, the Centre will not publish awards without the parties’ consent, although it may publish excerpts of the legal reasoning in the arbitration decisions, even when the parties do not agree to the publication of the award by the Centre. 45 In stark contrast, under UNCITRAL Rules even the decisions can stay secret. UNCITRAL incorporates the general principle in international commercial arbitration that information regarding the award be kept private, and can only be made public with the consent of both parties. Pursuant to this provision, a outside the jurisdiction of the Centre. He shall forthwith notify the parties of registration or refusal to register.” Available at http://www.worldbank.org/icsid/basicdoc/partA-chap04.htm. 42

See Biwater-Tanzania, Procedural Order No 5 70-71. Available at http://www.worldbank.org/icsid/cases/ pdf/ARB0522_ProceduralOrdNo5.pdf.

43

UNCITRAL Arbitration Rules, Article 25(4).

44 45

Methanex Corporation v. United States of America, Decision of the Tribunal, 15 January 2001, 41-42.

ICSID Arbitration Rules, Article 48(4) and (5). See also Additional Facility Rules of ICSID, supra note 47 at Article 53.

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State must seek and obtain approval from the other disputing party (the foreign investor) for the publication of the award, even to show it to its own citizens. A private party can thus block the publication of an award against the will of a State party. 46 Until the 2006 revision of the ICSID Arbitration Rules, the ICSID Rules were silent with respect to the amicus curiae question. However, under the “old” ICSID rules, the practice had already emerged for tribunals to accept briefs of amici. The tribunal in the Suez/Vivendi case was the first ICSID tribunal to deal with amicus curiae submissions, and it accepted that it had the power to accept amicus curiae briefs. 47 The revised ICSID rules integrate the Suez/Vivendi outcome in an explicit provision, allowing tribunals to accept amicus briefs, with or without the consent of the parties. 48 Similar to the old ICSID Rules, the UNCITRAL Arbitration Rules are silent with respect to the possibility of tribunals to accept and consider amicus curiae briefs. The Methanex tribunal was the first UNCITRAL tribunal to hold that Article 15(1) of the UNCITRAL Rules (addressing generally the authority of the arbitral tribunal)49 conferred the power on the tribunal to accept amicus curiae briefs.50 Whether this approach will be integrated into the UNCITRAL Rules in the ongoing revision process is still uncertain.



5 Final Remarks and Recommendations

Trade and investment are essential drivers for economic growth and development. Especially in North–South trade and investment, it is essential that the flows be assessed and monitored for their sustainability. Only an informed public and government can make informed decisions regarding trade and investment. Trade and investment disputes reflect some of the difficulties and problems encountered in these areas of transnational economic activity. In order for these difficulties to be adequately addressed, they will have to be exposed to citizens and governments as a basis for an informed discussion. This 46 47

UNCITRAL Arbitration Rules, Note 5 to Article 32.

Aguas Argentinas, S.A., Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v. Argentine Republic, Order in Response to a Petition for Transparency and Participation as Amicus curiae, ICSID Case No ARB/03/19 [hereinafter Vivendi, Order in Response to a Petition for Transparency and Participation as Amicus curiae] (19 May 2005).

48

Rule 37(2).

49

Article 15(1) provides as follows: “Subject to these Rules, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at any stage of the proceedings each party is given a full opportunity of presenting his case.”

50

Methanex Corporation v. United States of America, Decision of the Tribunal on Petitions from Third Persons to Intervene as “Amici Curiae” (15 Jan. 2001) at 27, 29 (hereinafter Methanex, Decision on Amici Curiae).

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will not be possible as long as these processes and decisions remain unknown or secret, or difficult to access at best. Transparency and public participation can be integrated into trade and investment dispute settlement processes at different levels and stages, and through various different channels, such as the revision of established procedural rules and through the revision of bilateral and regional treaties or contracts. The current WTO practice relating to the transparency and public participation has improved over the past few years, but there is still much room for improvement. Pleadings are still not made public, except where individual governments decide otherwise. Hearings are closed unless both parties agree to open hearings. Open hearings took place only in two cases so far, the first time being in 2005 – ten years after the creation of the WTO. The ongoing WTO negotiations provide an opportunity to clarify and institutionalize elements of transparency and public participation. At the Fourth WTO Ministerial Conference held in Doha in November 2001, Ministers agreed to improve and clarify the DSU based on work carried out in an earlier DSU Review and the various proposals submitted by members. In the DSU negotiations, some members advocated a “more open and transparent process” by opening dispute settlement procedures to the public, providing timely access to submissions and reports, and formalizing the treatment of amicus briefs. However, this approach met with resistance from several other members. The question is now still open to discussion. Given that the practice of increased transparency and public participation over the past few years has not encountered logistical problems or caused delays in ongoing processes, the move towards more standardized transparency and public input should encounter less opposition. Independently of the ongoing DSU revision process, however, members should continue to systematically increase transparency and promote public participation by disclosing all submissions and decisions, agreeing to open hearings, and accepting third-party submissions. In the context of investment, transparency and public participation continues to be highly unsatisfactory. There have been some improvements, but they are limited. For example, although ICISD Rules were recently revised and now incorporate improved transparency and participation provisions, the rules are still deficient, particularly with respect to the mandatory publication of awards, open hearings, and access to pleadings. UNCITRAL Rules, the second most important set of rules for investor–State disputes after ICSID Rules, on the other hand, continue to lack provisions on transparency and public participation: the initiation of disputes and even their outcome can remain completely unknown to the public, and often do. The rules are currently in the process of being revised for the first time in the 30 years since their inception. The ongoing revision process provides a unique opportunity for systemic reform of investment arbitration under UNCITRAL in favor

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of transparency and public participation.51 Regrettably, some of the members of the UNCITRAL Working Group revising the rules are hesitant to address the issue of investment arbitration and the related need for transparency and public participation. This may in part be due to the fact that the Working Group is under heavy influence of private practitioners, who may have an interest in retaining the secrecy of investment arbitration proceedings. Since the investment framework is in large part based on a multitude of international treaties, governments also have the possibility to enhance transparency and public participation via the investment treaties they negotiate. The issue can be addressed both ex post or ex ante. When the NAFTA parties, for instance, encountered the problem of secrecy of investment arbitration in the disputes initiated under Chapter 11 of the NAFTA (the investment chapter), the parties changed course and adopted interpretations regarding transparency. Newer agreements negotiated by the United States and Canada now regularly provide for across-the-board transparency. Thus, while these agreements continue to refer to ICSID and UNCITRAL, they complement these with additional rules which prevail over the ICSID and UNCITRAL Rules in well-defined instances. Governments are encouraged to adopt model BITs that provide for enhanced transparency and public participation, and to consider adopting binding interpretations or amendments with respect BITs already in force.

51

See CIEL-IISD, Revising the UNCITRAL Arbitration Rules to Address Investor-State Arbitration, available at: http://www.ciel.org/Publications/CIEL_IISD_RevisingUNCITRAL_Dec07.pdf.

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Bibliography Banisar (2006) Banisar D., Freedom of Information Around the World 2006: A Global Survey of Access to Government Record Laws, (forthcoming). Available at http://www.freedominfo.org/documents/global_survey2006.pdf.

Bruch (ed) (2002) Bruch C. (ed.), The New “Public”: The Globalization of Public Participation (ELI 2002). Available at http://www.elistore.org/reports_ detail.asp?ID=10662.

Mendel (2003) Mendel T., Freedom of Information: A Comparative Legal Survey 2021 (UNESCO, Regional Bureau of Information and Communications 2003).

Reports and other Resources • ICSID, Suggested Changes to the ICSID Rules and Regulations, at 10, Working Paper of the ICSID Secretariat, May 12, 2005. • International Law Commission, Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law, U.N. Doc A/CN.4/L.682 (13 April 2006) (finalized by Martti Koskenniemi). • UNCTAD, International Investment Rulemaking, Note by the UNCTAD secretariat (TD/B/COM.2/EM.21/2, 22 May 2007). Available at http://www.unctad.org/en/docs/c2em21d2_en.pdf. UNCTAD, Investor-State Disputes Arising From Investment Treaties: A Review, 2005, UNCTAD/ITE/IIT/2005/4, page 5. Available at http:// www.unctad.org/en/docs/iteiit20054_en.pdf. • UNCTAD, Bilateral Investment Treaties 1995-2006: Trends in Investment Rulemaking (United Nations: New York and Geneva, 2007). Available at http://www.unctad.org/en/docs/iteiia20065_ en.pdf. • T he World Commission on Environment and Development, Our Common Future (Oxford: Oxford University Press, 1987).

Table of Cases WTO Cases • Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos Containing Products [Complainant: Canada], WT/DS135/AB/R, adopted 5 April 2001. • Appellate Body Report, European Communities – Measures Concerning Meat and Meat Products (Hormones) [Complainant: United States], WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998. • Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products [Complainants: India, Malaysia,

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Pakistan, Thailand], WT/DS58/AB/R, adopted 6 November 1998. • Panel Report, United States Import Prohibition of Certain Shrimp and Shrimp Products [Complainants: India, Malaysia, Pakistan, Thailand], WT/DS58/R and Corr.1, adopted 6 November 1998, as modified by the Appellate Body Report,WT/DS58/AB/R, DSR 1998:VII, 2821. • Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres [Complainant: European Communities], WT/DS332/R, issued 12 June 2007. • Panel Report, European Communities – Measures Affecting the Approval and Marketing of Biotech Products [Complainants: United States, Canada, Argentina], WT/DS291/R, WT/DS292/R, WT/ DS293/R, adopted 29 September 2006. •U  nited States – Continued Suspension of Obligations in the EC – Hormones Dispute, DS320-21. •E  uropean Communities – Measures Affecting Trade in Large Civil Aircraft, DS316-17.

Investment Cases •A  guas Argentinas, S.A. v. Argentine Republic, ICSID Case No. ARB/03/19. •A  guas Del Tunari, S.A. v. Republic of Bolivia (Bechtel), ICSID Case No. ARB/02/3. •B  iwater Gauff Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22. •T  he Loewen Group, Inc. and Raymond L. Loewen v. United States of America, ICSID Case No. ARB(AF)/98/3. •M  etalclad Corporation v. Mexico, ICSID Case No. ARB(AF)/97/1. •M  ethanex Corporation v. United States of America, In the Matter of An Arbitration under Chapter 11 of the North American Free Trade Agreement and the UNCITRAL Arbitration Rules, Final Award of the Tribunal, August 7, 2005. •M  ethanex Corporation v. United States of America, Decision of the Tribunal on Petitions from Third Persons to Intervene as “Amici Curiae” (15 Jan. 2001). •S  .D. Myers, Inc. v. Canada, NAFTA/UNCITRAL Tribunal, Award on the Merits, 13 November 2000.

Other Cases • Inter-Am. Ct. HRs, Claude Reyes et. al. v Chile, Judgment (Sept. 19, 2006).

International Instruments • North American Free Trade Agreement (NAFTA), Dec. 17, 1992, reprinted in 32 I.L.M. 289 (1993). • North American Agreement on Environmental Cooperation 343

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(NAAEC), Sept. 13, 1993, reprinted in 32 I.L.M. 1480 (1993). • Memorandum of Understanding (MOU) between the Republic of Kenya, the United Republic of Tanzania and the Republic of Uganda for Cooperation on Environment Management, 1998. • ICSID Convention On The Settlement Of Investment Disputes Between States And Nationals Of Other States, as amended and effective April 10, 2006. • ICSID Arbitration (Additional Facility) Rules, as amended and effective April 10, 2006. • ICSID Rules of Procedure for Arbitration Proceedings, as amended and effective April 10, 2006. • U.N. Declaration on Environment and Development, June 14, 1992, U.N. Doc. A/CONF.151/5/Rev.1 (1992), reprinted in 31 I.L.M. 876 (1992) (Rio Declaration). • A genda 21, U.N. Conference on Environment and Development, U.N. Doc. A/CONF.151/26/Rev.1 (1992). • UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention), adopted in 1998. • UNCITRAL Arbitration Rules, 1976.

WTO Agreements • General Agreement on Tariffs and Trade 1994 (GATT 1994), Annex 1A to the Marrakesh Agreement Establishing the World Trade Organization (Apr. 15, 1994), in The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations, 33 I.L.M. 1125 (1999). • A greement on Subsidies and Countervailing Measures (SCM Agreement), Annex 1A to the Marrakesh Agreement Establishing the World Trade Organization (Apr. 15, 1994), in The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations, 33 I.L.M. 1125 (1999). • General Agreement on Trade in Services (GATS Agreement), Annex 1B to the Marrakesh Agreement Establishing the World Trade Organization (Apr. 15, 1994), in The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations, 33 I.L.M. 1125 (1999). • A greement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), Annex 1C to the Marrakesh Agreement Establishing the World Trade Organization (Apr. 15, 1994), in The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations, 33 I.L.M. 1125 (1999). • A greement on Sanitary and Phytosanitary Measures (SPS

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Agreement), Annex 1A to the Marrakesh Agreement Establishing the World Trade Organization (Apr. 15, 1994), in The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations, 33 I.L.M. 1125 (1999). • A greement on Technical Barriers to Trade (TBT Agreement), Annex 1A to the Marrakesh Agreement Establishing the World Trade Organization (Apr. 15, 1994), in The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations, 33 I.L.M. 1125 (1999). • Understanding on Rules and Procedures Governing the Settlement of Disputes Article 4.4, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, 33 I.L.M. 1226 (1994).

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Corporate Environmental Accountability as a Means for Intragenerational Equity ‘Hidden’ Environmental Impacts in the North-South Conflict Katinka Jesse and Marie-José van der Heijden

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1 Hidden Environmental Impacts

While the past few decades have seen Western societies establish comprehensive legal systems to mitigate and, to some extent, prevent all sorts of environmental harm and pollution, national borders generally limit the reach of these systems. Yet, significant environmental damage and decrease of natural resources is still (and increasingly) being caused elsewhere, most notably in developing countries, by the activities of transnational corporations operating from Western countries. In the same space of time, the number, power and influence of these transnational corporations (TNCs) have exploded. TNC operations are beneficial to them as well as to western societies without the accompanying environmental damage or degradation caused in developing countries being (fully) prevented, mitigated or compensated by TNCs, or much noticed in western societies. Whereas in developing countries, environmental legislation tends to be less well developed than in the west, from a business point of view, it is thus appealing to operate in developing countries. Moreover, to attract foreign investment, host governments may not only be willing to lower environmental, labour and human rights standards, but may be unwilling to enforce them. The title of this contribution refers to these significant environmental impacts as ‘hidden’, although from the perspective of the involved communities and natural resources of the host countries, they are not hidden at all. Whereas host governments and involved communities may also benefit from such activities, poor people often depend on natural resources more directly than any other group. They are usually the first to suffer when resources are damaged or become scarce. Moreover, the autonomous, intrinsic value of biodiversity is likely to be affected. As we will show, the phrase ‘hidden environmental impact’ does not only refer to the physical distance between TNC’s home state and the impacted state, but also to the lack of regulation, and in consequence of enforcement. Note that the same may be true for human rights: (often related) infringements of human rights may be ‘hidden’ in the same respects. From a sustainable development viewpoint, these situations are problematic, all the more, because the Brundtland report presupposes equitable sharing between the ‘Northern’ developed countries and the ‘Southern’ developing countries. In the same respect, the report refers to the term ‘hidden’ by way of ‘hidden environmental costs’. It states that whereas industrialized countries reflect in their export prices the costs of environmental damage and of controlling that damage, developing countries continue to born such costs entirely

* 

Katinka Jesse and Marie-José van der Heijden both write a PhD at Tilburg University, The Netherlands.

With the exception of possibly significant transboundary environmental impacts, this topic will not be addressed in this paper.



See e.g. Sadler & McCabe (2002) 463, Slootweg et al. (2006) 20 and OECD/DAC (2006) 14.

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domestically. The report also suggests that the environmental and resource damage costs related to products are higher in developing countries compared to industrialized countries.  Although passing along the real costs may reduce their attractiveness for investments and in consequence their competition position, the warning is clear: ‘it is in developing countries’ own long-term interests that more of the environmental and resource costs associated with production be reflected in prices.’ The phrases ‘hidden environmental costs’, used in the Brundtland report, and the phrase ‘hidden environmental impacts’, introduced in this contribution, are two sides of the same coin: the hidden environmental impacts form the hidden environmental costs. However, passing along the real costs will not necessarily prevent significant hidden environmental impacts to occur, although preventing them could lower the real costs. In concluding this topic, the Brundtland report states: ‘Such [pricing; mjh & kj] changes must come from the developing countries themselves’. This statement is followed by remarks on the responsibilities of TNCs as well as of their home states. Since the current economic and social instability of developing countries, generally, continue to realistically delay domestic solutions to the problem of hidden environmental impacts, attention indeed needs to be focused on other ways to regulate these significant environmental threats. We begin by discussing the problem of the hidden environmental impacts from a financial market point of view (section 2). As we will show, a banking approach does not provide a decisive answer to the problems addressed in this article. Next, we draw attention to some soft law mechanisms (section 3), and ask what role (hard) law can play (section 4). We will conclude with some final remarks (section 5).



2 Banking Approaches

The World Bank, the International Finance Corporation (IFC) and the Equator Principles are providing the main financial approaches with respect to the so-called ‘hidden’ environmental impacts caused by TNCs. As the World Bank primarily focuses on public sector projects, only the IFC and the Equator Principles are of direct relevance to this topic.



WCED (1987) 83.

 

Ibid. 84.

Ibid. 84.



Limiting ourselves to the soft law mechanisms of the OECD and the UN, which, as we will show, may form part of the translation of principles into binding legal norms.

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2.1 The IFC and the Equator Principles

Initiators of projects likely to adversely affect the environment may need external loans. With respect to the private sector intending to operate in developing countries, the most important lending organisation is the International Finance Corporation (IFC), which is the private sector arm of the World Bank Group. According to the Policy on Social and Environmental Sustainability it is IFC’s mission ‘to promote sustainable private sector development in developing countries, helping to reduce poverty and improve people’s lives.’ Central to this mission are its efforts to carry out its investment operations and advisory services in a manner that “do no harm” to people or the environment. Negative impacts should be avoided where possible, and if these impacts are unavoidable, they should be reduced, mitigated or compensated for appropriately. In particular, IFC is committed to ensuring that the costs of economic development do not fall disproportionately on those who are poor or vulnerable, that the environment is not degraded in the process, and that natural resources are managed efficiently and sustainably. IFC believes the client’s regular engagement with local communities about matters that directly affect them plays an important role in avoiding or reducing harm to people and the environment IFC also recognizes that the roles and responsibilities of the private sector in respecting human rights are emerging as an important aspect of corporate social responsibility. [all emphases are ours]

In reviewing prospective projects for soundness before it invests, IFC uses the procedure for Environmental and Social Review of Projects, as well as the environmental, health and safety guidelines of both the IFC and the World Bank. Under the aegis of the IFC, in 2003 the Equator Principles were launched.10 They offer a self-regulatory private banking industry framework to ensure environmentally and socially sound project financing by providing an environmental and social assessment procedure. Today, over fifty private international operating banks have volunteered to adhere to these principles.11 According to the preamble, the principles aim To ensure that the projects we finance are developed in a manner that is socially responsible and reflect sound environmental management practices. By doing so, negative impacts on project-affected ecosystems and communities should



See .



Available at .



See .

10 11

The principles are available at . In 2006, they were revised.

See .

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be avoided where possible, and if these impacts are unavoidable, they should be reduced, mitigated and/or compensated for appropriately.

The Equator Principles apply to all project finance transaction and project advisory services in all sectors with a total capital cost of more than ten million USD.12 For projects located either in non-OECD countries or OECD countries not designated as ‘high income’ as defined by the World Bank Development Indicators Database, the assessment will refer to the aforementioned IFC and World Bank guidelines.13 The social and environmental assessment procedures incorporated in both the policy of the IFC and the Equator Principles comprise more or less the essentials of any environmental impact assessment (EIA): screening of applicable projects; scoping of the information to be described; assessment of alternatives; consultation; and an evaluation of the presented information. Both use a categorisation system. Category A comprises projects with potential significant adverse social or environmental impacts that are diverse, irreversible or unprecedented; for projects falling in this category, a full environmental and social assessment (ESA) needs to be carried out. Category B, on the other hand, regards projects whose adverse social or environmental impacts are few in number, generally site specific, largely reversible and readily addressed through mitigation measures. A limited ESA suffices for projects in this category. For category C projects, having minimum or no social or environmental impact, there is no ESA requirement.



2.2 Some Drawbacks

As positive as these initiatives may look from the outside, there are several important drawbacks, of which we only name some.14 First, the screening mechanisms are inadequate. Although projects with a total capital cost of less than ten million dollars may perfectly well cause significant environmental harm, they are not captured under the working of the Equator Principles.15 Either categorisation system holds the risk of unjust rating;16 all the more so because the banks adhering to the Equator Principles rate the respective projects freely. 12 13

See the ‘scope’ of the Equator Principles.

According to Equator Principle 3.

14

We will, for example, not address the fact that the requirements of a full category A ESA in accordance with the Equator Principles are not as ‘full’ as those of other EIA-relevant international documents; see in this respect the doctoral thesis of Jesse, forthcoming June 2008.

15

Which already is an improvement compared to the original version of the principles in which the threshold was laid down at fifty million dollars.

16

See CAO (2005) 1-2 and 14, in which the Compliance Adviser/Ombudsman concluded that IFC’s category B rating of the soy production expansion project in Brazil could not be fully justified since several conditions where not met.

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And although both the IFC and the Equator Principles provide for citizen enforcement mechanisms regarding the implementation of projects concerned, Hunter points out that it is less clear whether the IFC (or World Bank) mechanisms will be sufficient enough to provide positive results for the affected people who bring the claims.17 It has been found that about half of the claimants who brought cases, felt the process resulted in some important benefits for them. Whereas from a Northern perspective such a result may seem pretty high, the absence of a ‘claim culture’ in developing countries means these figures need to be understood in such a context. Where commitment to implementing the findings of enforcement mechanisms is low, more stringent monitoring needs to be put in place.18 Besides, whereas the IFC require conducting meaningful consultation with relevant stakeholders including affected groups, NGOs and local authorities, the Equator Principles only require consulting affected communities, hence avoiding the involvement of knowledgeable yet possibly inconvenient NGOs. Moreover, the independent review mechanism in these principles proves to be unrealistically meagre.19 Although the preamble of the Equator Principles states that banks adhering to the principles will not provide loans to projects where the borrower will not or is unable to comply with the respective social and environmental policies and procedures that implement the Equator Principles, compliance instruments have not been enacted. Nevertheless, Schreve proves to be optimistic about their application.20 Since almost always a syndicate of banks will be involved in projects to which the Equator Principles apply, it should not be hard to convince other banks and their clients to apply these principles, she believes, and if the principles are not applied, she warns of likely reputation damage and civil society groups asking for explanations.21 However, the website of Banktrack, a network of civil society organisations and individuals tracking the operations of the private financial sector and its effect on ‘people and planet’, shows what they regard as the ‘dodgy projects and deals’: serious violations of Equator Principles clauses.



2.3 Conclusion

Despite the above quoted missions of both the IFC and the Equator Principles, the approved projects can and do have significant harmful

17

Hunter (2005) 4.

18

Ibid.

19

See principle 7, which prescribes the independent review to be carried out by just one environmental or social expert.

20 21

See Schreve (2007) 334-335.

Ibid.

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environmental effects.22 The prospective projects also seem to be considered in isolation, irrespective of whether and how they may contribute to the development of the country of operation.23 Due to this restricted interpretation of the intragenerational equity component of sustainable development, combined with the other drawbacks, banking approaches may not offer a definitive answer to the problems addressed in this paper. There are also serious doubts whether these approaches establish international law that might be actionable in national courts, see section 4 below.



3 Soft Law Instruments: the OECD Guidelines and the (draft) UN Norms

A broad range of soft law instruments try to ensure environmentally and/or socially, sound project implementation, including the aforementioned Equator Principles and various certification schemes. Certification schemes provide private regulation of corporate labour and environmental practices and hence recognisable environmentally and/or socially sound produced products that may stimulate informed consumer choices as well as the internalisation of environmental and/or social costs. For GATT arguments – regarding non-discrimination and non-tariff barriers – such schemes can only be of a voluntary nature; they cannot therefore prevent unsustainably produced goods from reaching the market, including products from transnational corporations causing significant ‘hidden’ environmental impacts. Industries themselves have also adopted self-regulatory codes, as have international operating institutions such as the OECD and the UN. It has been noted that today, over 2000 of such non-legally binding, self-regulatory codes exist.24 It would fall beyond the scope of this contribution to address all of these commitments to corporate responsibility, but we would like to explore two of them. The first is the OECD Guidelines for Multinational Enterprises (section 3.1). As the majority of TNCs have their headquarters in the OECD member states, the Guidelines of this multilateral organisation, adopted by some forty governments, provide a welcome addition25 to the other mechanisms in outlining the responsibilities of TNCs. The second one concerns the draft UN Norms on the Responsibility of Transnational Corporations and Other Business Enterprises (section 3.2). Although they have yet to be adopted, as a UN document they are supposed to be directed at the global level.

22

See for example Action Aid, et al. (2005), in which the impact of the finance sector on environmental and social rights is discussed.

23

See de Schutter (2004) 425-426.

24 25

Van Leuven (2004) 9.

See Morimoto (2005) 154.

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3.1 OECD Guidelines for Multinational Enterprises

The OECD Guidelines for Multinational Enterprises are recommendations addressed directly by the adhering governments to multinational enterprises operating within or from the territories of the undersigned states.26 These governments have committed to promote them among the enterprises concerned. The guidelines ‘encourage, where practicable, business partners including suppliers and sub-contractors, to apply principles of corporate conduct compatible with the Guidelines.’27 They also provide voluntary principles and standards for responsible business conduct in a variety of areas, including employment and industrial relations, human rights, information disclosure, combating bribery, and the environment. They aim To ensure that the operations of these enterprises are in harmony with government policies, to strengthen the basis of mutual confidence between enterprises and the societies in which they operate, to help improve the foreign investment climate and to enhance the contribution to sustainable development made by multinational enterprises.28

Chapter V of the OECD Guidelines specifically addresses the protection of the environment. The eight provisions concern topics such as environmental management plans; disclosure of information and communication with the affected people; the carrying out of environmental impact assessments where the proposed activity may have significant environmental impacts and where they are subject to a decision of a competent authority; the applicability of the precautionary principle where there are threats of serious damage to the environment, the maintaining of contingency plans for preventing, mitigating and controlling serious environmental damage from the operations concerned, and the education and training to employees in environmental health and safety matters. In the Commentary on the Guidelines, it is stated that chapter V broadly reflects the principles and objectives contained in, for instance, the Rio Declaration on Environment and Development. Indeed, the Guidelines contain the applicability of the precautionary principle as well as of Environmental Impact

26

These Guidelines are annex to the OECD Declaration on International Investment and Multinational Enterprises, both of which were adopted by the OECD on 1976; the last revision of the Guidelines stems from 2000. This document is available at .

27

See Chapter II, para. 10, OECD Guidelines.

28

See Preface, para. 1, OECD Guidelines. Another instrument – next to the OECD Guidelines – is the OECD Code on Principles of Corporate Governance, which, however, treats the international dimension and the ethical and environmental issues in less detail compared to the OECD Guidelines, see Dine (2005) 234-236.

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Assessment.29 However, reference to the equally important polluter-pays principle is lacking,30 as it is to the principles of liability and compensation for the victims of pollution and other environmental damage.31 Nor is the broad wording of the opening of chapter V continued throughout the chapter. In the opening it states: ‘Enterprises should, within the framework of laws, regulations and administrative practices in the countries in which they operate, and in consideration of relevant international agreements, principles, objectives, and standards, take due account of the need to protect the environment, public health and safety, and generally to conduct their activities in a manner contributing to the wider goal of sustainable development.’

By contrast, in section 6, it is stated that enterprises should Continually seek to improve corporate environmental performance, by encouraging, where appropriate such activities as the adoption of technologies that reflect standards concerning environmental performance in the best performing part of the enterprise.

The terms ‘by encouraging’ and ‘where appropriate’ leave the enterprises ample manoeuvrability, effectively watering down the meaning of this section and possibly conflicting with the precautionary principle as well. In light of the missing principles regarding ‘the polluter pays’ and ‘liability and compensation’, it is noteworthy that the OECD itself neither ensures independent verification of whether or not companies follow the guidelines, nor provides an independent enforcement mechanism. The Guidelines, though, do prescribe the installation of National Contact Points (NCPs), which should be open for complaints, also when they originate from NGOs. Due to the national character of these contact points, numerous political, social and economic factors may influence the outcome of their decisions. All the more so because these NCPs may not only consist of a government official or government office, but be organized as a co-operative body, including representatives of several government agencies, the business community, employee organizations or other interested parties.32 Although the NCPs meet on an annual basis to share their experiences, the variety of NCPs leads to divergent judgments. For instance, the French NCP sustained a complaint regarding the improper consultations of employees on the closure of Marks & Spencer

29 30 31

Para. 30.

According to principle 16, Rio Declaration.

According to principle 13, Rio Declaration.

32

See OECD Guidelines 2000, Chapter V, para. 35.

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stores, whereas the Belgian Contact Point concluded that the enterprise had not breached the Guidelines.33



3.2 UN Draft Norms on the Responsibilities of TNCs and Other Business Enterprises

The approval and consequent adoption of the draft ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’ (Norms) by the UN Sub-Commission on the Promotion and Protection of Human Rights in its Resolution 2003/16 on 13 August 200334 is often qualified as a landmark step in holding businesses accountable for their human rights abuses. According to Weissbrodt and Kruger, the Norms constitute a ‘succinct, but comprehensive, restatement of the international legal principles applicable to businesses with regard to human rights, humanitarian law, international labour law, environmental law, consumer law, anticorruption law, and so forth.’35 A closer look at the draft Norms reveals that they represent a further step by the international community to involve companies in international standards setting: a forerunner of the draft Norms was the UN Code of Conduct for Transnational Corporations.36 This document, however, was never adopted completely, partly due to the North–South conflict. A similar and more recent attempt to regulate corporate conduct is the UN Global Compact.37 The drawback of this document is that it is non-binding; it is entirely voluntary. Like with other voluntary initiatives, it is criticized for enhancing corporate involvement without engagement. Besides, the draft Norms are far more detailed and intended to legally bind corporations, their officers and workers.38 They also consist of references and interpretations primarily of legally binding treaties and non-binding guidelines adopted by the ILO39 and the OECD. Next to existing legal documents, the draft Norms draw on documents that reflect already existing interna33

See .

34

UN Sub-Commission on the Promotion and Protection of Human Rights, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, UN Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003), available at http://www.unchr.ch/html/menu2/2/55sub/ 55sub.htm.

35

Weissbrodt and Kruger (2003) 901-922. See on this particular topic: Morgera (2006) 15, 193.

36 37

See for the differences ‘at a glance’: http://www1.umn.edu/humanrts/ataglance/compdftun.html.

See http://www.unglobalcompact.org/.

38

See its Preamble. States are addressed as well but only marginally. Moreover, the International Organization of Employers (IOE) and the International Chamber of Commerce (ICC), amongst other business representatives, have criticized the Norms for the shift to a binding document. See also Hillemans (2003) 4.

39

See for instance the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and the OECD Guidelines for Multinational Enterprises.

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tional practice in this area such as industry and commodity of group initiatives, framework agreements between transnationals and workers’ organizations, self-imposed company codes of conduct and NGO or union model guidelines. 40 The draft Norms state that companies have the obligation to promote, secure the fulfilment of, respect, ensure respect of and protect human rights recognized in international as well as national law. 41 Next to the obligations, the draft Norms list specific focus points or interest fields. Of those, the seventh section is devoted to obligations concerning environmental protection and, therefore, of direct relevance to this topic. Nevertheless, one must not skip section 5 on respect for national sovereignty and human rights, because this section goes into the relationship between corporations with host governments as well as human rights issues of the second and third generation. 42 The draft Norms state that companies, in particular, shall contribute to sustainable development. Consequently, companies, and in particular the extractive sector, should take additional precautions regarding the local communities and indigenous people’s dependence on the natural environment. In furtherance of the concept of sustainable development, the Commentary43 adds that intellectual property rights should be used in contributing to innovation, transfer of technology, and social and economic welfare. Herewith, companies’ obligation in relation to sustainable development is concretized. Turning to section 7, corporations are obliged to observe international agreements, principles, objectives and standards on human rights, public health and safety, next to national laws, regulations, practices, and policies concerning the environment of the countries in which they operate. Generally stated, they shall conduct their activities in a manner contributing to the wider goal of sustainable development. 44 The accompanied Commentary on the draft Norms clarifies that TNCs and other business enterprises have to respect the right to a clean and healthy environment in the light of the relationship between the environment and human rights. 45 The question, however, is whether section 7 provides a sufficiently firm basis for environmental protection. For one, the reference to the right to a clean and healthy environment seems rather optimistic, as it is not considered to be a fundamental right in binding international law or customary law. Two, as far as 40 41

Hillemans (2003) under III; the Norms as restatement of the current law, at 7; see previous note.

Although the phrase “within their respective spheres of activity and influence” offers a degree of flexibility. It also raises many questions, such as how to determine the sphere of influence in a given situation and to what degree. Though interesting, we will not dwell into that here.

42

See also Hillemans (2003) 17. Second and third generation are socio-economic rights and participation rights.

43

Hillemans goes deeper into the commentary and subsequent subject matters that are only touched upon here, cf. ibid.

44 45

The wording of this provision resembles the above-quoted OECD provision.

At 14.

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developing countries are concerned, it seems unlikely that the national frameworks referred to, generally, provide for effective regulation and enforcement of TNCs and their associated operations. 46 And last, with regard to the international environmental framework, it should be noted that, apart from environmental treaties, international environmental law, in particular, consists of numerous legal documents whose respective status and impact are unclear. Without knowing the status of the various principles, objectives, responsibilities and standards, enforcement may be difficult. Paradoxically, the ‘Norms’ themselves are not binding; the ‘principles’ it contains may be, however. By contrast, international environmental agreements are binding upon the undersigned states, but frequently they can only be characterized as framework treaties, lacking many substantive operational norms. There are exceptions, though. 47 Whereas the draft Norms, as a covering document, rightly leave it to the parties concerned to establish to which international environmental norms and – regarding enforcement policies – according to which modes TNCs may be held accountable – hence providing for a dynamic interpretation over time – it is of great importance to identify these norms. Within the framework of this article we can only stipulate this importance, and leave identification aside.



3.3 Conclusion

The Norms are drafted to legally bind corporations to uphold human rights particularly when operating in host states. They encourage the corporate citizen to take up its responsibilities by outlining the legal obligations in more detail than the UN Corporate Code of Conduct or the UN Global Compact. It addresses primarily the corporate world, but states are still regarded as the prime means of implementing the Norms. States must establish and reinforce the necessary legal mechanisms for ensuring that business abides by human rights, including environmental obligations. The same Norms, just as the OECD Guidelines, oblige companies to assess and monitor their environmental impacts, thereby pushing for self-regulatory measures. Due to the aforementioned drawbacks, it is, however, not considered likely that these selfregulatory mechanisms themselves will be able to provide a structured solution to the problems addressed in this paper. In virtue of the draft Norms, companies shall provide prompt, effective and adequate reparation. As the well-known US Alien Tort Claims Act (ATCA) is an example of providing damages for the violation of international human rights 46 47

See for a detailed (with references) discussion on the reasons why, Morimoto (2005) 146.

See, e.g., the Vienna Convention on the Protection of the Ozone layer (1985) and its Montreal Protocol on Substances That Deplete the Ozone Layer (1991), the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, as well the Bern Convention on the Conservation of European Wildlife and Natural Habitats (1979).

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and customary law, we will examine if this statute would be applicable to the above-described instances of corporate environmental impact.



4 Extraterritorial Regulation on TNCs

As has been noted above, it seems unlikely that developing host countries themselves, generally, will be able or willing to regulate transnational corporations’ environmental practices effectively. 48 Up till now, only national jurisdictions grant corporations their legal personality, therefore, they have no international personality. Nevertheless, TNCs do operate worldwide. Scholars have put forward that TNCs, by acting and being a bearer of rights are therefore bearers of obligations, and in extension as global participants, TNCs must have some sort of legal personality internationally. 49 We will neither go into this topic, nor into the subject of corporate veil: the principle of separation of legal identity between different companies, regarded as fundamental. It allows parent companies of (wholly-owned) subsidiaries and other affiliates to evade accountability for their unlawful behaviour, and may be regarded as problematic. This is because the subsidiaries comprising such complex corporate structures may be insolvent and uninsured; hence they may leave the victims without redress. 50 Because there is no world tribunal for enforcement,51 extraterritorial application may offer a workable solution.52



4.1 Extraterritoriality: Some Preliminary Remarks

As discussed in the section on the UN draft Norms, the (home) states are addressed if corporations themselves fail to deliver sound self-regulation. Setting aside the disadvantage of infringing the sovereignty of host states for now, the advantage of extraterritorial regulation is that such rules are able to oblige TNCs to comply with stringent (national) environmental legislation. Morimoto gives another advantage of the extraterritorial application. It could ‘facilitate the transfer of advanced environmental technologies to developing host countries and boost the development of environmental training programmes for employees in those countries.’53 Besides, it is added that the richer should bear

48

See for a detailed (with references) discussion on the reasons why, Morimoto (2005) 146.

49 50 51

See e.g. Addo (1999) and Jägers (2002).

See Meeran (2000) 252-253.

Another venue may be the ICJ. However, this article addresses the question whether corporations themselves can be held accountable. The ICJ Statute only provides for state responsibility.

52 53

Also referred to as direct foreign liability, see Joseph (2004).

Morimoto (2005) at 146. See also OECD Guidelines, § 3.1 above.

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the burden of enforcement costs.54 A more objective justification for the latter argument is that the TNCs’ assets are often located in the developed countries and the home countries profit55 from the profits made by TNCs in the developing countries often without due regard to environmental standards. If home states are willing to apply their own national environmental regulations to foreign corporate activities, the first question to answer is whether home states are allowed to apply their legislation to foreign activities by international law. Here, the principle of sovereignty has to be reckoned with. In international law, territoriality is the prime56 and prescriptive jurisdiction.57 The state has jurisdiction to prescribe the law concerning corporate conduct within its own national geographical borders. This method of external application has to be based on something other than territory. How to manage this? As stated above, the US ATCA is the best-known example of how national legislation may be applied extraterritorially. As ATCA demonstrates, there is only one set of rules that is qualified for this purpose: international law. Consequently, interference with the sovereignty principle is minimized, objections to sovereignty related doctrines are staved off, and political abuse of the law may be dissuaded.



4.2 The Example for Extraterritorial Regulation: The US ATCA

This section will outline the US approach in suits by US aliens against perpetrators of human rights abuses, wherever they occurred. As of the 1980s, the case law concerning ATCA (1789) or Alien Tort Statute (ATS), has widely expanded. One of the last cases to reach the US Supreme Court was the 2004 Sosa case. The ATCA, 28 USC § 1350, states that US courts have jurisdiction to hear suits by aliens for torts committed in violation of international law: The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.58 54

Ibid., at 146: ‘[t]he brunt of the enforcement costs would be borne by the governments of developed home countries, which generally have sufficient financial and legal resources.’

55

Through their taxation regime.

56

Other principles that may be the bases of jurisdiction: nationality principle; passive personality principle; protective principle; universality principle.

57

According to the Permanent Court of International Justice (ICJ) in The Case of the S.S. ‘Lotus’ (Fr. v. Turk.), Judgement of 7 September 1927, 1927 P.C.I.J. Series A, No. 10, at 20.

58

Newman and Weissbrodt (1996) 505. Originally ATCA was included in the Judiciary Act of 1789, but the reasons for its inclusion are unclear. See on this matter, for example, Burley (1989) 475-480 and Fitzpatrick (1989) 491-492.

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Plaintiffs and their representatives look to extraterritorial mechanisms, such as the ATCA, to hold corporations accountable that cannot be held responsible in the countries where the misconduct took place, i.e., the plaintiffs’ home countries. A threshold question on the jurisdictional issue is whether the conduct violates the ‘law of nations’. However, preliminary questions are issues relating to formal jurisdiction matters such as who may bring a case before a US court. Being an alien is not the only criterion.59 Other formal jurisdiction issues must be considered too.60 Apart from these formal jurisdictional matters of which the forum non conveniens doctrine, meaning that another forum is more appropriate than the US court to hear the case at hand, does not preclude the case to go forward, a substantive one of actionability has to be sorted out.61 Since Filartiga,62 the US ‘federal courts have ATCA jurisdiction only if international law proscribes the tortious conduct. The proscription may be contained in a treaty to which both the US and the country where the tort occurred are parties.”63 Regarding the problems addressed in this article, environmental misconduct has to be regulated by a treaty to which both the US and the developing country where the tort took place have adhered. A second source is the law of nations, which is understood to be customary international law. In relation to this second source, the Second Circuit stringently required the ‘general assent of civilized nations’ to become binding upon them all.64 This requirement is needed in light of the principle of sovereignty.65 Nevertheless, the ATCA provision as such – by granting standing to aliens and claiming jurisdiction over acts that are committed abroad – still infringes the sovereignty of the foreign states. However, the Second Circuit recalled that the UN Charter makes it clear that today the treatment of foreign citizens even in another state is a matter of international concern.66 Because Congress provided federal control over external affairs in the first 1789 Judiciary Act67 and because only international norms should be applied, we agree that ‘[i]t is not extraordinary for a court to adjudicate a tort claim arising outside of its territorial jurisdiction.’68 59

It is in practice a prerequisite to be represented by a specialized team of lawyers.

60

On other jurisdictional problems concerning federal or district court see Newman and Weissbrodt (1996) 506 and 508.

61

See on this Newman and Weissbrodt (1996) 507.

62

U.S. Court of Appeals Second Circuit, 1980. 630 F.2d 876, see e.g. Diskin (2005) 805-836. And on federal jurisdiction (Filartiga case), Weissbrodt, Fitzpatrick and Newman (2001) 767.

63

Newman and Weissbrodt (1996) 509.

64

See, most notably, U.S. Court of Appeals Second Circuit, 1995, Kadic v. Karadzic, 70 F.3 d, and U.S. Court of Appeals Ninth Circuit, 2002. Doe v. Unocal Corp., 963 F Supp. 880.

65

For instance, act of state doctrine, forum non conveniens, political question/interference with foreign policy.

66 67

Paraphrasing Newman and Weissbrodt (1996) 507-508.

See in detail Diskin (2005) at 811-814.

68

Newman and Weissbrodt (1996) 508.

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This stated, there is no universal agreement as to the exact contents or extent of the ‘laws of nations’, i.e., human rights and fundamental freedoms guaranteed to all. In Flores v. Southern Peru Copper Corporation,69 Peruvian plaintiffs brought personal injury claims under ATCA against an American mining company, alleging that pollution from mining company’s (Peruvian) operations had caused severe lung disease. The Second Circuit ruled that ‘[a] treaty will only constitute sufficient proof of a norm of customary international law if an overwhelming majority [i.e., no universal consensus is needed] of States have ratified the treaty, and those States uniformly and consistently act in accordance with its principles.’ The claims were not sustained because the court ruled that the rights to health and life are insufficiently definite to be binding rules of customary international law.70 Also in Beanal v. Freeport-McMoran, ATCA claims alleging cultural genocide against a tribe in Indonesia by destroying the tribe’s habitat and religious symbols through mining operations were not sustained because there were insufficiently articulable or discernable standards and regulations to identify practices that constitute international environmental abuses or torts.71 Besides, the Court ruled that, although the US has articulable standards embodied in federal statutory law to address environmental violations domestically,72 nonetheless, federal courts should exercise extreme caution when adjudicating environmental claims under international law to insure that environmental policies of the United States do not displace environmental policies of other governments. Both cases serve to confirm the ‘twin protection’ criteria set forth in Filartiga, ‘namely that ATCA confers jurisdiction only (1) where the challenged conduct is both universally condemned as being of mutual and not merely several concern to nations, and (2) is capable of some level of specific defini-

69

U.S. Court of Appeals Second Circuit, 2003. Flores v. Southern Peru Copper Corporation, 343 F.2d 140 (2d Circ. 2003).

70

Thereby confirming an international recognized and enforceable (human) right to a healthy environment does not exist yet, see e.g. Verschuuren (2006b) 48. The right to life is another matter that relates to the ratification note made by the US: Covenant on Civil and Political Rights is not self-executing.

71

U.S. Court of Appeals Fifth Circuit 1999. Beanal v. Freeport-McMoran, 197 F.3d 161, see Weissbrodt, Fitzpatrick and Newman (2001) 769. See in this respect also U.S. Court of Appeals Second Circuit, 2002. Agiunda v Texaco, F.3d, 2002 WL 188105. No. 01-7756L regarding Ecuadorian plaintiffs alleging that Texaco’s Ecuadorian activities violated international law under the ATCA because of environmental harms resulting in personal injuries.

72

The court explicitly referred to the National Environmental Policy Act (42 U.S.C. § 4321 et seq.) and the Endangered Species Act (16 U.S.C. § 1532). On national cases concerning environmental damage caused by corporations, the US has enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA; 42 U.S.C. s/s 9601 et seq. (1980), which regulates (corporate) liability and provides for reparation compensation.

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tion.’73 In this respect, in Sosa v. Alvarez-Machain,74 the Supreme Court stated that ‘laws of nations’, has to be interpreted restrictively. The Supreme Court, did not, however, overrule Filartiga in that respect. It declared explicitly what the Second Circuit has stated: that one has to be cautious in expanding the notion of laws of nations nationally without taking due care of international developments. Therefore, the laws of nations must be interpreted in light of modern international law.75 Although there may be environment-related standards constituting binding rules under ATCA, either incorporated in environmental treaties as such or derivative from human rights, to date, no ATCA judgment relating to environmental rights abuses has been rendered against a corporation successfully.76 Upholding the Supreme Court’s opinion that ‘some, but few’ torts in violation of international law are recognized under the ATCA,77 it presumably aimed to prevent an enormous amount of court cases. However, more fundamentally, it might (only) require that international principles should have become (specific enough) legal norms and will not settle for principles as mere aspirations or values such as the principle of sustainable development.78 In order for environmental-related ATCA claims to be successful, it would thus be necessary, as stated before,79 to identify the norms of international environmental agreements to which TNCs may be hold accountable, taking into account that ATCA claims can currently only be based on treaties to which both the US and the country where the tort occurred are parties. Nevertheless, there is fierce opposition to ATCA, because it may infringe the foreign policies of the executive and hamper international relations. Recalling the previous remark that it touches and infringes the principle of sovereignty, how should one address these issues? We continue our search for accountability mechanisms on corporate (environmental) misconduct80 by describing another method, that of indirect extraterritorial regulation.

73

See Nickles et al. (2003) 3.

74 75

U.S Supreme Court 2004 542 U.S. 692. Recent case that cited Sosa: Apartheid Litigation.

Universal condemnation is, however, not necessary.

76 77

See (for the various reasons) e.g. Wouters et al. (2003) 8, and Nickles et al. (2003) 3.

U.S. Supreme Court 2004. Sosa v. Alvarez-Machain et. al. 542 U.S. 692 .

78

See on the ideal of sustainable development, as an expression of the morality of aspiration, Verschuuren (2003) 19-50, and Verschuuren (2006a) 6 and 57.

79

See section 3.2 above.

80

Being the title and aim of the dissertation of Jägers (2002).

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4.3 Extraterritorial Regulation Based on General Tort Law: The English Example

Neither the United Kingdom (UK) nor the Netherlands has a statute comparable to ATCA. Nevertheless, English courts have dealt with foreign (environmental) damage by TNCs in a few cases, by way of a legal fiction. The English approach differs considerably from the ATCA approach as the courts apply home state’s own general tort law indirectly extraterritorially. This method would not constitute any infringement of the sovereignty principle because only the parent company is in focus and the home state is applying its own laws to its own companies. The behaviour of these parent companies is regulated in such a manner as to make it incumbent on them to use their control in supervising its contacts, i.e., not only branches, but also subsidiaries and other contractors (lenders, suppliers, etc.).81 The consequence of this approach is twofold. The TNCs’ parent companies are in a better position to oversee the activities, or failing this should implement corporate governance mechanisms that will give the parent’s board of directors the insights into it. It is a method that would improve corporate social and environmental responsibility performance by preventing damage or mitigating it or by adequately responding to it. Moreover, the principle of sovereignty is upheld, because the prosecution of foreign subsidiaries is left to their respective states. An additional advantage of this approach is that the home countries have to take responsibility by virtue of (the principle of) comity.82 For as it is the home state that allowed the parent companies to incorporate into its legal system, it only seems fair and just that home states should address the problems as well. By establishing and maintaining its link to the home state, home state court cases seem justifiable, though – as Morimoto rightly states83 – the object of this approach is still to control TNCs’ activities abroad. Thus, we conclude that while the principle of sovereignty is not violated directly, it is indirectly, because home states interfere with the legislation, law enforcement and conduct within the borders of the host states. By regulating conduct on the territory of foreign states, it pierces the veil of sovereignty. Again, how to mitigate fierce opposition relating to the infringement of this international legal principle? Customary international law is part of English common law. So, as far as civil human rights claims may represent customary international law, those claims are actionable under general tort law.84 Breaches of treaty provisions, however, are not part of English law, unless they are incorporated by legislation. In relation to this direct application of international law by national courts, 81

See also Morimoto’s remarks at 149-150 that subsidiaries are immune from direct extraterritorial regulation.

82 83

See for a similar view on ‘comity’ albeit different reasoning: Newman and Weissbrodt (1996) 508.

Morimoto (2005) 146; 149-150.

84

See for this view, the cases cited that are derived from S. Joseph’s (2004).

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Dutch law requires merely that treaties must establish (sufficiently clear) rights.85 For instance, the Norms have to be precise enough to regard them as legal norms. Certain human rights violations are regarded as ius cogens that are prohibited regardless the status of the perpetrator. Setting aside obstacles related to direct and horizontal effect of international law, forum non conveniens is not dealt with either.86 In the Connelly case, a former employee of an RTZ subsidiary, which ran a uranium mine in Namibia, filed a complaint. The plaintiff claimed that the English parent RTZ has failed in its duty of care (due diligence) to ensure the subsidiary provided adequate work safety systems to protect him from the hazardous effects. Thus, the claim was based on negligence. A similar case is Lubbe v Cape plc., in which more than 300,000 claimants sued Cape for its negligent failure to ensure that its South African subsidiary should have installed safe working practices to protect them. However, one wonders whether these cases represent true extraterritorial regulation of foreign corporate misconduct. While the aim is to regulate the matters extraterritorially, the tort is committed within UK borders, that is, within the boardrooms of the English parent companies.



4.4 Dutch Possibilities to Incorporate Principles into Hard Law Mechanisms: Batco And Beyond

Compared to the afore-mentioned US and UK cases, no corporate foreign human rights case has been brought before a Dutch judge to date. However, civil liability for such foreign corporate human rights claims may also have a venue in the Dutch legal system. Apart from the common civil courts, the Dutch legal system has a specific mechanism, i.e., the enquête procedure87 of the Companies and Business Court, in place to review corporate governance related issues.88 And because CSR with its environmental dimension is part of corporate governance, environmental mismanagement can be litigated. Besides, one may argue that TNCs in particular should install and implement corporate 85

National approaches differ because of the nature of their legal systems: UK has a dualistic approach toward international law (regards it as a separate legal order) while the Netherlands has a moderate monistic view on international law (constituting one legal order).

86

See moreover Case C-281/02 (Owusu v. Jackson) [2005] ECR I-3481: this doctrine cannot be applied if the defendant is present in an EU Member State, even if the plaintiff is a non-national or non-resident of an EU Member State and even if the tort was committed outside the EU (paras. 25-26, 30-31, 35, 37, 41-43).

87

The enquête procedure is a specific Dutch legal figure slightly comparable to the business judgment rule. The aim of such a procedure is to examine the corporate conduct, i.e., the management and its decisions. It can also be used as a disclosure mechanism.

88

The mechanism is often compared with the US Delaware court. See the special issue on specialized business courts of Ondernemingsrecht, 2007, 3, 79-95: Jack B. Jacobs, at 80-85; Maarten J. Kroeze, at 8691; and Levinus Timmerman, at 91-95.

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governance mechanisms to prevent and respond adequately to its subsidiaries’ misconduct. For corporate governance is concerned with profit, people and the planet, the environmental impact of its own and its affiliates’ operations are business-related issues. Dutch TNCs are incorporated in the Dutch legal system and therewith the link between foreign misconduct and the Netherlands is established. Shareholders and some other stakeholder may then file a complaint to the Companies and Business Court in Amsterdam for alleged mismanagement.89 Although no case on foreign corporate human rights violations has been filed as yet, it might be useful to take a closer look at its case-law in light of corporate governance issues. In relation to the afore-mentioned UN Norms and OECD Guidelines, the 1979 Batco case has to be mentioned. According to the Companies and Business Court, non-binding documents do not prescribe legal obligations. However, if a (parent) company subscribes to the viewpoint of certain principles or Norms – in the Batco case it concerned the OECD Guidelines – those principles acquire great significance. For acting in violation of those subscribed principles or guidelines may constitute violations of the fundamental principles of responsible corporate conduct.90 Irresponsible corporate conduct consisting of certain environmental effects can, thus, constitute mismanagement, which may result into far-reaching judicial remedies.91 Another case in which the Companies and Business Court implicitly ruled that non-binding guidelines can be binding is KPN/SOBI.92 It considered that because the guidelines (on annual reports) have evolved into publicly accepted norms, the company KPN had to comply with them or should have explained why it did not follow the publicly accepted standards. Notwithstanding the financial reporting principles the case involved, the issue is clear: either the principles have evolved into socially accepted legal, and thus, enforceable norms, or the principles do not reflect publicly accepted standards and, consequently, companies are not bound to comply with them. A far more explicit case concerns Versatel.93 Versatel became the parent company of Tele2 AB by buying up to 80 per cent of the latter’s shares. On 89

Review of the decision of the Companies and Business Court is provided by lodging an appeal with the court of cassation, i.e., the Dutch Supreme Court (Hoge Raad der Nederlanden).

90

Hof [Court] Amsterdam (OK) [Companies and Business Court] 21 June 1979, NJ 1980, 71 (Batco). The case was about the closing of a factory without duly and timely informing the representatives of the employees of the decision of the parent company so to do. As a consequence, several employees lost their jobs. The act of the parent company and its board of directors was qualified to constitute mismanagement.

91

Not dealt with here.

92 93

Dutch Supreme Court 10 February 2006, LJN: AU7473, C04/305HR, (KPN/SOBI).

OK (Dutch Companies and Business Court) 14 December 2005, LJN: AU8151, 1446/2005 OK and 1847/2005 OK (Centaurus Capital Ltd. et al v. Versatel Telecom International N.V.) Confirmed by the Dutch Supreme Court: Supreme Court 14 September 2007, LJN: BA4888, Hoge Raad, R06/030HR.

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18 May 2005, Versatel’s general meeting approved the company’s corporate governance policy. Like the Batco case again, the parent had spoken of acting in accordance to a Dutch non-binding instrument, the Tabaksblat code,94 and the concerned stakeholders (in this case, shareholders holding a minority in shares; in Batco’s case, it concerned employees) were not informed. This conduct was qualified as mismanagement and the Court appointed three other persons to review the corporate decisions.95 In the Zeelandia case,96 the same court approved the possibility of ordering the disclosure of the management policies of Dutch-related subsidiaries abroad. Herewith, a simple but effective mechanism is introduced that exposes the foreign operations and possible environmental and human rights misconduct to public scrutiny. In short, the foreign corporate operations are exposed by offshore (Dutch) disclosure. If one considers that a number of Dutch TNCs have subscribed not only to the Tabaksblat corporate governance code or the OECD Guidelines, but also to the UN Global Compact and the draft UN Norms, this national mechanism may provide the needed tools to incorporate non-binding principles in concrete binding legal norms. Whether this would extend to holding TNCs and other business enterprises to the higher norms of their domestic standards, is questionable, though. Such a possibility was included in the non-legislative ‘Resolution on the Standards for European Enterprises Operating in Developing Countries: Towards a European Code of Conduct’, adopted in 1999 by the European Parliament.97 The European Parliament quite firmly stated that European companies should comply with EU environmental, animal welfare and health standards. However, no such European Code of Conduct has yet been adopted.



5 Conclusion

The reference in the title of this contribution to ‘hidden’ environmental effects relates both to the distance between TNCs’ home state and the significant environmental impacts caused by the same TNCs, without these impacts being (fully) prevented, mitigated or compensated. Also, as effective regulation and effective enforcement lag behind, visible counteracting mechanisms are not in place either. In this respect, we addressed several promising mechanisms, from banking approaches to both soft and hard law. Having shown that neither banking nor soft law instruments provide a practicable answer to the problems addressed, we outlined some extraterritorial mechanisms, i.e., those of the US, UK and the Netherlands. 94 95

Note that the Code itself cannot be regarded to constitute law.

Confirmed by the Dutch Supreme Court 14 September 2007, LJN: BA4888, Hoge Raad, R06/030HR

96 97

Dutch Supreme Court 13 May 2005, LJN: AT2829, Hoge Raad, R03/149HR (OK108).

European Parliament 1999.

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These national approaches show that lack of coordination to address the significant hidden environmental impacts is countermanded by divergent mechanisms. A serious disadvantage in the enforcement of international environmental law via national lawsuits is that it will lead to fragmentation and legal insecurity in the development of this field of law.98 To evolve a legal doctrine on which all parties can rely, at least in part, discourse would be needed at the international level. Were this to happen, the concept of sustainable development, and in particular its component of intragenerational equity, may truly counteract the inequitable distribution of resources between the North and the South. It would require perseverance to complete the shift in international law, enabling companies to be held accountable as well as their subsidiaries, subcontractors, and other affiliates, for human rights and environmental rights abuses. In order to render successful cases, the norms of international environmental agreements to which TNCs may be held accountable need to be crystallized. Subsequently, gaps in international environmental standards need to be identified as well, preferably followed by international initiatives to fill these gaps with supplementary norms. A strong incentive for the development of this legal doctrine is the lawsuit. To set the ball rolling in a pragmatic way, NGOs could actively trace affected people and offer to help them file as many environmental lawsuits as possible, in all the home states of the TNCs that cause, or are complicit in, hidden environmental damage.99 It would turn the spotlight on the level of fragmentation in this legal field, and as TNCs would not benefit from such a variety of risks – in fact, rather the opposite: shared minimum standards are essential for a level playing field in this area – they may be more minded to accept a successor of the draft Norms and, possibly, in the long run, a UN Treaty directed to TNCs and other business enterprises and binding on states. Here, though, the importance of soft law does not need to be set completely aside. Soft law and hard law can successfully, that is effectively, be combined. TNCs could develop further standards by soft law mechanisms, but hard law could and should be applied to fundamental issues to ensure (the fulfilment of) our common future.

98

See Kamminga (2003) 192.

99

Unarguably, this suggestion would lead to questions of locus standi that we do not get into, see for instance Betlem (2000). See on the role of NGOs e.g.: Jägers (2006) 229-270, Van Genugten et al. (2004), and Flinterman and Van Genugten (2003).

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Bibliography Action Aid et al. (2005) Action Aid, Amnesty International, Friends of the Earth, et al., A Big Deal? Corporate Responsibility and the Finance Sector in Europe (2005), available at .

Addo (1999) M. Addo (ed.), Human Rights Standards and the Responsibility of Transnational Corporations (The Hague/London/Boston 1999).

Betlem (2000) Gerrit Betlem, Transnational Litigation against Multinational Corporations before Dutch Civil Courts, in: M. T. Kamminga & S. ZiaZarifi (eds.), Liability of Multinational Corporations under International Law (The Hague 2000) 283-305.

Burley (1989) Anne-Marie Burley, The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor, (1989/3) Am. J. Int’l L. 461-493.

CAO (2005) Compliance Adviser/Ombudsman, International Finance Corporation/Multilateral Investment Guarantee Agency, CAO Audit of IFC’s Environmental and Social Categorization of the Amaggi Expansion Project, June 2005, available at .

Dine (2005) Janet Dine, Companies, International Trade and Human Rights (Cambridge 2005).

Diskin (2005) Daniel Diskin, The Historical and Modern Foundations for Aiding and Abetting Liability under the Alien Tort Statute (2005/47) Arizona Law Review 805-836.

European Parliament (1999) European Parliament, Resolution on EU standards for European enterprises operating in developing countries: towards a European Code of Conduct, adopted by the European Parliament on 15 January 1999, A40508/1998, OJ C 104/176, April 14 1999.

Fitzpatrick (1993) Joan Fitzpatrick, The Future of the Alien Tort Claims Act of 1789: Lessons from In Re Marcos Human Rights Litigation (1993/67) St. John’s L. Rev. 491-521.

Flinterman and Genugten (2003) C. Flinterman and W. van Genugten (eds.), Niet-statelijke actoren en de rechten van de mens; gevestigde waarden, nieuwe wegen [Non state actors and human rights; established values, new venues] (The Hague 2003).

370

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Genugten, van Gestel, Prins and Vedder (2004) W.J.M. van Genugten, R.A.J. van Gestel, J.E.J. Prins, A.H. Vedder, NGO’s als ‘nieuwe toezichthouders’ op de naleving van mensenrechten door multinationale ondernemingen. [NGO’s as the ‘new supervisors’ of the fulfilment of human rights by multinational corporations] (The Hague 2004).

Hillemanns (2003) Carolin Hillemanns, UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (2003/10) German Law Journal 1065-1080.

Hunter (2005) D. B. Hunter, The emergence of citizen enforcement in international organizations, paper presented at the Seventh International Conference on Environmental Compliance and Enforcement, of the International Network for Environmental Compliance and Enforcement, April 2005, available at .

Jacobs (2007) Jack B. Jacobs, The Role of Specialized Courts in resolving Corporate Governance Disputes in the United States and the EU: an American judge’s perspective (2007/3) Ondernemingsrecht 80-85.

Jägers (2002) N.M.C.P. Jägers, Corporate Human Rights Obligations: In Search of Accountability (Antwerpen/Oxford/New York 2002).

Jägers (2006) N.M.C.P. Jägers, Mainstreaming Human Rights in International Economic Organizations: improving judicial access for NGOs to the World Trade Organization (2006/2) Netherlands Quarterly of Human Rights 229-270.

Joseph (2004) Sara Joseph, Corporations and Transnational Human Rights Litigation (Oxford 2004).

Kamminga (2003) M.T. Kamminga, Maatschappelijk verantwoord ondernemen: afdwingbaar via het internationale recht? (2003/5), SV&V 186-192.

Kroeze (2007) Maarten Kroeze, The Companies and Business Court as a Specialized Court, (2007/3) Ondernemingsrecht 86-91.

Leuven (2004) N. van Leuven, Business is not just business (2004/1) Tijdschrift voor Mensenrechten 8-11.

Meeran (2000) Richard Meeran, Litigation Against MNC’s: Civil Suits in the UK,

371

sustainable development in international and national law

in: M.T. Kamminga and S. Zia-Zarifi (eds.), Liability of multinational corporations under international law (The Hague 2000) 251-264.

Morgera (2006) Elisa Morgera, The UN and Corporate Environmental Responsibility: Between International Regulation and Partnerships (2006/1) RECIEL 93-109.

Morimoto (2005) Tetsuya Morimoto, Growing Industralization and Our Damaged Planet: The Extraterritorial Application of Developed Countries’ Domestic Environmental Laws to Transnational Corporations Abroad (2005/2) Utrecht Law Review 134-159.

Newman & Weissbrodt (1996) Frank Newman & David Weissbrodt, International Human Rights – Law, Policy and Process (Cincinnati 1996).

Nickles, Cubbage & Honing (2003) Peter J. Nickles; Thomas L. Cubbage & Elie Honig, Court Poperly Limits Scope of Alien Tort Claims Act (2003/2) Legal Backgrounder 1-4

OECD 2006) Organisation for Economic Co-operation and Development/ Development Assistance Committee, Applying Strategic Environmental Assessment, Good Practice Guidance for Development Co-operation (OECD Publishing 2006), available at

Sadler & McCabe (2002) B. Sadler & M. McCabe, Environmental Impact Assessment Training Resource Manual (Geneva 2002), available at .

Schreve (2007) L. Schreve, The Equator Principles: A Voluntary Approach by Bankers, in: C.J. Bastmeijer and T. Koivurova (eds.), Theory and Practice of Transboundary Environmental Impact Assessment (Leiden 2007) 327344.

Slottweb, Kolhoff, Verheem & Höft (2006) R. Slootweg, A. Kolhoff, R. Verheem & R. Höft, Biodiversity in EIA and SEA, Background Document to CBD Decision VIII/28: Voluntary Guidelines on Biodiversity-Inclusive Impact Assessment (Utrecht 2006), available at .

Schutter (2005) O. de Schutter, Transnational corporations as instruments of human development, in: Ph. Alston and M. Robinson, Human Rights and Development Towards Mutual Reinforcement (Oxford 2005), 403-444.

Timmerman (2007) Levinus Timmerman, Company Law and the Dutch Supreme Court: some remarks on contextualism and traditionalism in company law (2007/3) Ondernemingsrecht 91-95.

372

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United Nations Economic and Social Council (2000) United Nations Economic and Social Council, The right to the highest attainable standard of health, E/C.12/2000.4, August 11th 2000.

Verschuuren (2003) J.M. Verschuuren, Principles of Environmental Law. The ideal of Sustainable Development and The Role of Principles of International, European, and National Law (Baden-Baden 2003).

Verschuuren (2006a) J.M. Verschuuren, Sustainable Development and the Nature of Environmental Legal Principles (2006/1) Potchefstroom Electronic Law Journal, 1-57.

Verschuuren (2006b) J.M. Verschuuren, Internationaal milieurecht [International environmental law], in: Ch.W. Backes et al . (eds.), Milieurecht [Environmental law] (Deventer 2006), 43-65.

Weissbrodt, Fitzpatrick & Newman (2001) David Weissbrodt, Joan Fitzpatrick & Frank Newman, International Human Rights – Law, Policy and Process (Cincinnati 2001).

Weissbrodt and Kruger (2003) David Weissbrodt and Muria Kruger, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (2003/4) The American Journal of International Law 901-922.

WCED (1987) World Commission on Environment and Development, Our Common Future (Oxford 1987).

Wouters, De Smet & Ryngaert (2003) J. Wouters, L. De Smet & C. Ryngaert, Tort Claims Against Multinational Companies for Foreign Human Rights Violations Committed Abroad: Lessons from the American Tort Claims Act (Leuven 2003), available at .

Table of Cases ICJ •T  he Case of the S.S. ‘Lotus’ (Fr. v. Turk.), Judgement of 7 September 1927, 1927 P.C.I.J. Series A, No. 10, at 20.

ECJ • Case C-281/02 (Owusu v. Jackson) [2005] ECR I-3481.

National Case Law • Hof [Court] Amsterdam (OK) [Companies and Business Court] 21 June 1979, NJ 1980, 71 (BATCO). • U.S. Court of Appeals Second Circuit 1980 Filartiga 630 F.2d 876.

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•U  .S. Supreme Court 1992 . United States v. Alvarez-Machain, 504 U.S. 655. • U.S. Court of Appeals Second Circuit 13 oct. 1995 Kadic v. Karadzic, 70 F.3 d. •U  .S. Court of Appeals Fifth Circuit 1997. Beanal v. FreeportMcMoran, 197 F.3d 161, 769. • U.S. Court of Appeals Second Circuit 16. Aug 2002. Agiunda v Texaco, F.3d, 2002 WL 188105. No. 01-7756L. •U  .S. Court of Appeals Ninth Circuit. 18 sept. 2002. Doe v. Unocal Corp., 963 F Supp. 880. • U.S. Court of Appeals Second Circuit 2003. Flores v. Southern Peru Copper Corporation, 343 F.2d 140. • U.S. Supreme Court 2004. Sosa v. Alvarez-Machain et. al., 542 U.S. 692. • OK (Companies and Business Court) 14 December 2005, LJN: AU8151, 1446/2005 OK and 1847/2005 OK (Centaurus Capital Ltd. et al v. Versatel Telecom International N.V.). • Dutch Supreme Court 13 May 2005, Zeelandia, LJN: AT2829, R03/149HR (OK108). • Dutch Supreme Court 10 February 2006, LJN: AU7473, C04/305HR, (KPN/SOBI). • Dutch Supreme Court 14 September 2007, LJN: BA4888, Hoge Raad, R06/030HR.

Abbreviations ATCA American Tort Claims Act DAC Development Assistance Committee EU European Union IFC International Finance Corporation GATT General Agreement on Tariffs and Trade NCP National Contact Point NGO Non-governmental organisation OECD Organisation for Economic Co-operation and Development SV&V Tijdschrift voor stichting, vereniging en vennootschap TNC Transnational Corporation UN United Nations USD United States Dollar

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part iv sustainable development in ec law chapter 4.1

Sustainable Development in EC Law Ludwig Krämer

chapter 4.1



sustainable development in ec law

1 Primary EC Law

The notion of sustainable development gained a worldwide reputation through the Brundtland Report 1987, but is in fact much older. The Treaty establishing the European Economic Community (EEC Treaty) of 1958, though, did not contain any wording in this regard. Its Article 2 assigned to the EEC the task, among others, “to promote … a harmonious development of economic activities, a continuous and balanced expansion.” The first substantive amendment of the Treaty, in 1987, did not change the wording of Article 2; however, it did introduce a chapter on environmental policy, represented in essence today by Articles 174 to 176. It was the Maastricht Treaty on the European Union of 1993 which changed the name of the EEC Treaty to “Treaty establishing the European Community” (EC Treaty). This Treaty also amended Article 2, officially assigning to the Community the task to protect and improve the environment. Sustainable development was neither included in the passage on the environment in Article 2 nor in the environmental chapter of Articles 174 to 176. It was only with regard to economic activities that the notion of sustainability appeared: indeed, the words “continuous and harmonious development of economic activities” in Article 2 were replaced by “harmonious, balanced and sustainable development of economic activities”. The reason for this was apparently more cosmetic than substantive and no substantive discussion took place on the notion of sustainability in the Intergovernmental Conference which prepared the Maastricht Treaty. When the Amsterdam Treaty of 1999 was negotiated, Sweden, Finland and Austria had joined the EC (in 1995), three countries with strong national environmental policies. Sweden in particular insisted on having the words “sustainable development” explicitly mentioned in the EC Treaty. The intergovernmental conference thus amended Article 2 again: the phrase “harmonious, balanced and sustainable development of economic activities” was replaced by “harmonious, balanced and sustainable development of economic activities”, and it was further added that there should be a “sustainable and not-inflationary growth”. The environmental section of Article 2 and the chapter on the environment did not contain any mention of sustainable development. * 

Ludwig Krämer is partner of an environmental consultancy “Derecho y Medio Ambiente” in Madrid.

See Sand (2007) p. 201.



See Cloos et al. (1993) p. 139: “Sustainable growth is a concept which is fashionable (en vogue) since some years: it aims, rather than encouraging a “continuous expansion” at reconciling growth and the respect of the environment, growth and the rational use of energy, growth and absence of significant inflation” [my translation].



Article 2 EC Treaty: “The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Article 3 and 4, to promote throughout the Community a harmonious, balanced and sustainable development

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The Amsterdam Treaty also had to deal with integrating into other EC policies environmental requirements which until then had been part of Article 174 EC Treaty, but to little effect. The Commission suggested inserting an integration provision into all the sections of other policies, such as transport, agriculture etc. The Conference considered this excessive. It took therefore the integration provision out of Article 174 and made it into a new Article 6 adding, at the insistence in particular of Sweden, Austria and Finland, that the environmental requirements should be integrated into other EC policies “with a view to promoting sustainable development”. The Amsterdam Treaty also amended the Treaty on European Union and inserted, in the Recital 8 of that Treaty, a reference to sustainable development, calling it this time a “principle” not “task” . In contrast, Article 2 of the Treaty of European Union stated: The Union shall set itself the following activities: - to promote economic and social progress and a high level of employment and to achieve balanced and sustainable development, in particular through the creation of an area without internal frontiers, through the strengthening of economic and social cohesion and through the establishment of economic and monetary union, ultimately including a single currency in accordance with the provisions of this Treaty.

The Nice Treaty did not occasion further changes to Article 2 of the EU Treaty or Articles 2 or 6 of the EC Treaty. Three aspects merit attention. The first is that “sustainable” was linked to economic growth right from the beginning of the treaty negotiations in 1991/1993. Indeed, it meant to promote economic growth in the Community. The wording of the Maastricht Treaty – “The Community shall … promote … sustainable and not-inflationary growth respecting the environment” – is revealing. It shows that “sustainable” was not seen as having any environmental content, or the words “respecting the environment” would have been superfluous. Also in the presently applicable version of Article 2 EC Treaty, “sustainable development” is linked to the economic activities. Second, during these Treaty negotiations and amendments, there was obviously no clear concept of what sustainable development meant. This is evidenced by reference to it as both a “principle” and at the same time an objective (activof economic activities, a high level of employment and of social protection, equality between men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States.” 

Amsterdam Treaty on European Union (1997) OJ C 145, Recital 8: “Determined to promote economic and social progress for their peoples, taking into account the principle of sustainable development.”

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ity), in the EU Treaty (1999). Finally, “sustainable development” is not used in the context of environmental protection. The passage on the environment in Article 2 EC does not refer to it; Article 2 EU Treaty which refers to sustainable development, does not refer to the environment. And the notion of sustainable development does not appear in the chapter on environmental policy in the EC Treaty (Articles 174 to 176 EC). This drafting of the EU and the EC Treaty led the Council to declare that “Sustainable development is … not in line with Article 174 EC Treaty with regard to the objectives of environmental policy.” The legal consequences of this statement are quite unclear; politically, it would seem to indicate that the Council is of the opinion that the protection of the environment and sustainable development are independent entities and must not be confounded. Such an interpretation would explain why the Community launched its Lisbon Strategy on the promotion of economic growth and more and better jobs under the heading of sustainable development.



2 Secondary EC Legislation

It is impossible here to explore every sectoral policy of the EC in detail, or the extent to which the notion of sustainable development was used and which content was given to it. I shall therefore mainly concentrate on three sectoral policies, namely regional, fisheries and development policy, and provide some examples of each.



2.1 Fisheries Policy

Regulation 2371/2002, adopted in 2002, provided for a relatively far-reaching revision of the fisheries policy, which is based on the EC Treaty provisions of Articles 32 to 38. The Regulation states that the “Common Fisheries Policy shall ensure the exploitation of living aquatic resources that provides sustainable economic, environmental and social conditions” (Article 2(1)) and that the environmental impact of fishing shall be limited (Article 1(2)(b)). Under “sustainable exploitation” it understands “the exploitation of a stock in such a way that the future exploitation of the stock will not be prejudiced and that it does not have a negative impact on the marine eco-systems” (Article 3(d)).



Council, Common Position on the proposal for Regulation 1367/2006,(2005) OJ, C 264E p. 18 (p. 25 III.2).

 

Regulation 2371/2002, (2002) OJ L 358 p. 59.

See also Reg. 2371/2004, Recital 4: “The objective of the Common Fisheries Policy should therefore be to provide for sustainable exploitation of living aquatic resources and of aquaculture in the context of sustainable development, taking account of the environmental, economic and social aspects in a balanced manner”.

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The Regulation also provides for an adaptation of the fisheries fleet of the Community, in order to prevent overfishing. In practice, the Council was regularly seen as fixing quotas at unsustainable levels, too high, according to scientists and environmentalists, to allow existing stocks to recover. European waters are significantly overfished as a result. The Council’s decisions were obviously influenced by political and vested interest groups, against which environmental arguments were not strong enough. The reduction of the fishing fleet proceeded too slowly and was not as extensive as some had wished; it is generally accepted that even today, in 2007, there are considerable overcapacities in the EC fishing fleet. As overfishing led to falling catches in European territorial waters, the Community began in 2002 to conclude bilateral fisheries partnership agreements with third countries with a view to giving the European fishing fleet access to the fishing grounds of third countries. By the end of 2006, twelve such bilateral agreements were concluded.10 In these agreements, the sustainable exploitation of the fishery resources is no longer mentioned, prompting one to ask what the Community fishing fleet does to avoid catching too much fish. Most of the agreements do not mention the protection of the environment at all11 and nowhere is it stated that the impact of fisheries on the environment should be limited. All Agreements provide for payments to the third country in order to promote “responsible fisheries”, a term which stems from a FAO Code of 1995. The Agreements, however, do not clarify what they understand by this notion. All Agreements provide for the full application of the legislation of the third country, which means that the EC environmental provisions – for example on driftnet-bans, bans of by-catches of turtles or marine mammals, or mesh size etc. – do not apply. This approach contrasts with the social provisions of the Agreements which also refer to the third country’s legislation, but which apply certain provisions of the International Labour Organisation (ILO) to indigenous seamen on board the European vessels. It shows that it would have been possible to apply EC environmental protection provisions also in the waters of the third country. It is, in theory, possible to check the compatibility of such agreements with the provisions of the EC Treaty. However, apart from wondering who would be interested and willing to bring a case before the Court of Justice, the only 

See European Environment Agency, Status of fish stocks (CSI 032), November 2005. http//themes.eea. europa.eu/IMS/ISPecs/ISpecification20041007132227/Assessment/1116498234748/view_cont.



The European Environment Agency’s fishing fleet capacity indicator only reaches to 2003 and does not cover the 27 Member States. The indicator shows a decrease for EU-15 between 1989 and 2003, but adds that efficiency gains mean no let up in quantities are being caught.

10

The third countries, contractors to such agreement, were Comoros Islands, Gabon, Guinea, Ivory Coast, Kiribati, Mauretania, Mauritius, Micronesia, Morocco and the Seychelles.

11

An exception is the Agreement with Micronesia (2006) OJ L 151 p. 3, Annex, Chapter 11, where it is mentioned that the environment and the atolls in Micronesia are fragile, and that therefore there should be no discharge of substances which are susceptible to harm the environment.

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material provision against which such agreements could be checked would be Article 6 EC Treaty – which would presuppose that the Court of Justice would be able to state that environmental considerations were not sufficiently taken into consideration. Until now, the Court has never decided on such an issue. In view of the large discretion enjoyed by EC institutions to conclude international agreements, it is more than doubtful whether any fisheries agreement would be considered incompatible with Article 6 – all the more, as the EC could argue that it is up to the third country to protect its environment. This is formally correct, though in substance, as all the agreements demonstrate, not at all in practice. Overall, it is difficult to see in what the sustainable character of the Common Fisheries Policy actually consists. There is no clear definition of sustainable development or sustainable exploitation in concrete terms. What is even more important, there is no body – of fisheries, environmental, biological experts – with the powers to spell out what sustainable development means in a concrete case. The decision on total allowable catches is motivated more by political and social than environmental considerations – and inevitably declared as catches that are “sustainable”.



2.2 Regional Policy

The Community regional policy aims “at reducing disparities between the levels of development of the various regions and the backwardness of the least favoured regions or islands, including rural areas” (Article 158(2) EC Treaty). Between 2006 and 2013, a sum of 308bn € is being made available for this policy. A framework regulation contains provisions which apply to the Regional Fund, the Social Fund and the Cohesion Fund. For each of these funds, some complementary provisions are foreseen. The Framework Regulation12 states in Article 17: The objective of the Funds shall be pursued in the framework of sustainable development and the Community promotion of the goal of protecting and improving the environment, as set out in Article 6 of the Treaty.

This wording appears to assume that the protection of the environment is not part of the notion of “sustainable development”. The notion is, however, not further defined or explained. And no indication is given how this should be organised, managed or achieved. The Regulation on the Regional Fund13 has as one of its objectives the promotion of “sustainable integrated regional and local economic development” (Article 4). The same provision mentions the promotion of “sustainable tourism”, to which Articles 6(2)(b) and 10 also refer. Article 5 declares that the focus 12 13

Regulation 1083/2006 concerning general provisions for the structural funds (2006) OJ L 210 p. 25.

Regulation 1080/2006 on the European Regional Fund (2006) OJ L 210 p. 1.

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shall be on the assistance in the context of sustainable development strategies. Article 5(2)(b) provides for the promotion of infrastructure linked to biodiversity and investment in Natura 2000, but only “where this contributes to sustainable economic development and/or diversity of rural areas”. Other articles allow the Regional Fund to assist in “sustainable urban development”(Articles 6(2)(d) and 8); to promote clean and sustainable public transport, particularly in urban areas (Article 5(2)(d)); to address the sustainable development of coastal fishing (Article 9); and finally the sustainable use of natural resources (Article 10). This frequent use of the word “sustainable” contrasts with the absence of a definition, or indeed any mention of the enterprise/activity to be promoted sustainably (“sustainable tourism” etc.). One wonders, therefore, whether the adjective “sustainable” helps qualify the areas which may be promoted, and what such qualification would amount to in practice. As the promotion of “public transport” is equivalent to “clean and sustainable public transport” and the development of coastal fishing no different from “sustainable development of coastal fishing”, it is difficult to see how funds could be refused for the promotion of urban development, because it is not a sustainable urban development. The Regulation on the Social Fund14 mentions, among other possible activities that could be co-financed, the “sustainable inclusion in the labour market of job seekers and inactive persons” (Article 3(1)(b)) and the “sustainable integration in employment of disadvantaged people” (Article 3(1)(c)). Again, one might wonder, what added value the word “sustainable” has here, as again no definition is given. The Cohesion Fund serves, according to Article 161(2) EC Treaty, to cofinance projects “in the fields of environment and trans-European networks in the area of transport infrastructure.” These two areas limit the scope of the Cohesion Fund quite considerably. At its establishment, by the Maastricht Treaty in 1993, the Cohesion Fund was intended to help less economically favoured Member States in two specific sectors. The Regional Fund was already rendering general assistance to less wealthy regions. Regulation 1084/200615 spoke of “sustainable development”, which allowed it to bypass the limitation of Article 161(2) EC Treaty. Indeed, Article 2(1)(a) of that Regulation provides for assistance as regards trans-European networks. Article 2(1)(b) then provides for financial assistance for the environment within the priorities assigned to the Community environmental protection policy under the policy and action programmes on the environment. In this context, the Fund may also intervene in areas related to sustainable development which clearly present environmental benefits, namely energy efficiency and renewable energy and, in the transport sector, the trans-European networks, rail, river and sea transport, intermodal transport systems and their interoperability, 14 15

Regulation 1081/2006 on the European Social Fund (2006) OJ L 210 p. 12

Regulation 1084/2006 on the Cohesion Fund (2006) OJ L 210 p. 79.

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management of road, sea and air traffic, clean urban transport and public transport.

It is obvious that this provision is ultra vires: the management of air traffic has nothing to do with the protection of the environment; the same applies to rail, river and sea transport and public transport and most of the other measures that are listed.16 The Regulation ignores the jurisprudence of the Court of Justice which had declared that a measure which is taken in a specific sector of EC policy does not become an environmental measure by the fact that it favours or promotes the protection of the environment.17 The notion of sustainable development is used here to divert sums ear-marked for environmental protection to other sectors. And the condition that the areas must be “related to sustainable development which clearly present environmental benefits” is anything but clear. It is not explained how air transport or sea transport are related to sustainable development. In view of the considerable sums which, according to the Commission, are necessary every year to establish and monitor the Natura 2000 network – 6.1 billion Euro,18 – one may legitimately presume that the Cohesion Fund is being tapped to co-finance projects in other sectors. If one looks at the legal provisions of the regional policy sector, the conclusion is rather obvious: the notion of “sustainable development” and the word “sustainable” are used without any definition. No attempt is made to specify what sustainable tourism, sustainable urban development or similar notions mean.



2.3 Development Policy

In development policy, one of the main instruments is the so-called Cotonou Partnership Agreement between the European Community and some eighty countries of Africa, Asia and the Caribbean.19 It establishes the basis for cooperation with these countries, including development aid. The Agreement indicates that the signatories of the Agreement will work together towards achievement of, among other things, “sustainable development” (Recital 2). For them, “sound and sustainable economic policies are a prerequisite for development” (Recital 5). Article 1 encourages an integrated approach to the different problems, “taking into account the political, economic, social, cultural and environmental aspects of development”. Here, the word “sustainable” is not used. The same Article stipulates that “sustainable economic growth, developing the private sector, increasing employment and improved access to productive 16 17

See Krämer (2007), section 4-21.

Case C-62/88 Greece v. Council (1990) ECR 1527; Case C-70/88 European Parliament v. Council (1991) ECR I-4561.

18

Commission, COM(2004) 431 of 15 July 2004.

19

ACP-EC Partnership Agreement (2000) OJ L 317p. 3; amended in 2005 (2005) OJ L 209 p. 27.

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resources” shall be part of the frame within which the partnership cooperation shall develop and concludes that the “principles of sustainable management of natural resources and the environment shall be applied and integrated at every level of the partnership.” Article 9(1) determines that “cooperation be directed towards sustainable development centred on the human person” and that an integrated part of sustainable development is “respect of all human rights and fundamental freedoms, including respect for fundamental social rights, democracy based on the rule of law and transparent and accountable governance.” Article 32 seeks to “[mainstream] environmental sustainability into all aspects of developing cooperation”; environmental sustainability is also mentioned in Article 20. And Article 23 coins the notion of “sustainable policy”. Again, the notion of sustainability is nowhere explained, defined or otherwise specified. In the year of the conclusion of the Cotonou Agreement, the Council adopted two Regulations of relevance to the topic under discussion here. The first concerns the full integration of the environmental dimension in the development process of developing countries. This Regulation defined “sustainable development” as follows20: Sustainable development means the improvement of the standard of living and welfare of the relevant populations within the limits of the capacity of the ecosystem by maintaining central assets and their biological diversity for the benefit of present and future generations.

Another definition of sustainable development was given in Regulation 2394/2000 on tropical forests which was adopted the same day by the Council21: Sustainable development means the management and uses of forests and wooded land in a way, and at a rate, that maintains their biological diversity, productivity, regeneration capacity, vitality and their potential to fulfil, now and in future, relevant ecological, economic, and social functions at local, national and global level, without causing any harm to other ecosystems.

Would these definitions have the desired effect on the behaviour of governments, or private persons, one wonders. Indeed, it is not clear what “central assets” in the first, and “relevant functions” in the second definition really mean and whether these definitions apply to a whole country or also to a specific local forest. And is it reasonable to expect the management of any forest, in a developing or developed country, to be capable of respecting all the requirements laid down in the second definition, now and in future? The development policy does, 20 21

Regulation 2393/2000 (2000) OJ L 288 p. 1, Article 2.

Regulation 2394/2000 (2000) OJ L 288 p.6, Article 2.

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however provide some orientation on what sustainable development means: economic development shall not take place at the expense of the environment.



2.4 Energy Policy

The EC may only act “within the limits of the powers conferred upon it” by the EC Treaty (Article 5 EC Treaty). While Article 3 EC Treaty allows the EC to pursue an agricultural, commercial, environmental or transport policy, it does not enable it to pursue an energy policy. Indeed, Article 3(1)(u) EC Treaty states that the EC may take “measures” in the sphere of energy policy. Practically, thus, energy policy falls, at present, almost completely in the responsibility of EC Member States. The Euratom Treaty, which was set up to promote the use of nuclear energy, and the responsibility for coal and lignite which the EC took over from the European Treaty on Coal and Steel – which expired in 2002 – in addition to a number of specific measures adopted over the years and which include State aid, Trans-European energy networks, measures to promote energy saving and energy efficiency, may be bundled under a heading of “energy policy”, though the main drivers for energy issues within the EC are the Member States. Due to this basic decision in the EC Treaty, the Community has not developed a coherent and consistent policy in the area of energy. The relatively recent EC decision to tackle climate change issues tries to forget this situation, though most of the measures, such as on energy efficiency, energy saving or greenhouse gas emission trading are based on the environmental legal basis of Article 175 EC Treaty. To what extent the continuing subventions for coal and lignite and the general use of nuclear energy really are compatible with concepts of sustainability has never been explored in detail by the Community institutions. For example, United States and German authorities require, for a site to host the disposal of nuclear waste, to be safe against earthquakes, landslides and other similar events for a period of one million years; one might wonder, whether such storage of nuclear waste, including the waste from the decommissioning of nuclear installations, really enables future generations to meet their own needs. In early 2007, the European Commission resumed the questions of sustainability of energy issues within the EC as follows22: Energy accounts for 80% of all greenhouse gas (GHG) emission in the EU; it is at the root of climate change and most air pollution. The EU is committed to addressing this – by reducing EU and worldwide greenhouse gas emissions at a global level to a level that would limit the global temperature increase to 2°C compared to pre-industrial levels. However, current energy and transport policies would mean EU CO² emissions would increase by around 5% by 2030 and global

22

Commission, An energy policy for Europe, COM(2007) 1 of 10 January 2007. Emphasis added.

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emissions would rise by 55%. The present energy policies within the EU are not sustainable.

Apart from the fact that the contribution of energy to acidification, tropospheric ozone building, waste generation, soil degradation, marine and coastal zone problems, technical hazards and threats to nature and biodiversity are not mentioned in this summary, nothing has to be added to this conclusion.



2.5 Environmental Policy

In this author’s understanding, sustainable development is an environmental notion which ensures that the degree of environmental protection is not decreased by whatever political, economic or social action. However, as indicated, this does not appear to be the general understanding. Therefore, some comments might be useful to illustrate the present state of environmental affairs at EC level.23 Climate change has come to the forefront of the political discussions within the EC, and even globally, during the last years. The EC will find it difficult to reach the Kyoto target of reducing its greenhouse gas emissions by 8 percent in 2012, compared to 1990. But even then, it must not be forgotten that these 8 percent already constitute about half of what the EC itself considered necessary, when it entered the Kyoto negotiations: at that time, it had asked for a global reduction of 15 percent. As progress towards a carbon-free society only advances very slowly, there is little hope that the unsuccessful history of EC energy policy – illustrated by the failure of a common nuclear and coal policy, by the failure of the CO² agreement with the car industry in 2006, by the absence of binding EC provisions to reduce CO² emissions in any sector, by the failure to a general promotion of alternative energies, by the incapacity to make a transport policy that aligns to climate change requirements and by the failed attempt to wash (drastically reduce greenhouse gas emissions) without getting wet hands (imposing strict measures on transport, business and private households) will really lead to a happy ending. The statement that energy policies are not sustainable must, in the light of the climate change discussion, be understood as to mean that the environmental dimension of energy policy is insufficiently taken care of. The EC gave as a policy target to stop the loss of biodiversity by 2010; for the marine environment, the delay had already pushed the date forward to 2012. No natural scientist with an idea of the state of affairs, believes this deadline can be respected. Some of the habitats which need protection, will still await designation by then – not to talk of the taking of the necessary conservation measures – nor will the extinction and threat to fauna and flora species have significantly diminished. Landscape and soil protection by the EC is practically inexistent, 23

See also Krämer (2002).

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and within EC Member States very clearly subordinated to other interests, in particular farming, urbanisation, transport and tourism. Air pollution in urban agglomerations, in particular by fine particulates, remains a problem, after 27 years of law-making in this area. As most Member States were not able to comply with strict legal requirements for such particulates (PM10), despite a transition period of five years, the legal requirements are now being revised and adapted to the environmental reality. In water issues, the EC has largely replaced or is replacing earlier precise objectives by general provisions (“good ecological quality”) and administrative provisions. And faced with the ubiquity of chemical substances the EC’s reaction was to set up new procedures and agencies (“REACH”); there has been no attempt as yet to systematically eliminate certain toxic substances from the products and, hence, the environment. The EC has not managed to decouple waste generation from economic growth. The concept of the throw-away society is not seriously questioned, recycling is only breaking ground with great difficulty and at a very low speed. Landfills remain the main disposal path and the incineration of waste is slowed down not by EC action, but by resistance of the civil society to this form of disposal or energy recovery. The EC’s global achievements in environmental matters are poor. The EC is in the driving seat for negotiations on climate change. However, neither its global policy on forests nor on agriculture or fishery, wastes and products is a success story for the planet. Point source pollution in the EC, in particular by industrial installations, was reduced, and it is undoubtedly of great merit to have raised awareness and promoted steps to improve protection of the environment within the whole of the EC, at local, regional and national level. Several procedural provisions are of considerable usefulness for the environment. These and some other success stories are not sufficient, though, to qualify EC environmental policy as, overall, sustainable, in particular in view of the situation in biodiversity and climate change.



3 Policy Statements

In the year 2000, the Commission sent a paper on “An agenda of economic and social renewal” to the European Council which met in March 2000 in Lisbon.24 Based on this paper, and on a number of other documents on economic and social questions, the European Council fixed, at its spring meeting 2000, a “[N]ew strategic goal to become the most competitive and dynamic 24

The Commission paper seems not to have an official COM or SEC number. It is mentioned in the annex to the conclusions of the meeting of the European Council of 23 and 24 March 2000 (http://europa. eu/european_council/conclusion/index_eu.htm).

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knowledge-based economy in the world, capable of sustainable economic growth with more and better jobs and greater social cohesion.” The European Council agreed to discuss progress in reaching this “Lisbon Strategy” at its yearly spring meetings. At Community level, sustainability questions were first officially addressed by the Commission’s proposal for a Fifth Environmental Action Programme of 1991 which had the title “Towards Sustainability”.25 That programme was not really able to describe what it meant by sustainable development. It quoted the phrase from the Brundtland report – “development which meets the need of the present without compromising the ability of future generations to meet their own needs” – and took it up by stating, in “more prosaic” terms, “don’t eat the seed corn which is needed to sow next year’s crop”.26 However, then it resigned and stated that the concept of sustainable development was very closely linked to the prospects of continued development and success of a country or a region as well as to the profit and loss account of individual enterprises. The Council noted that many forms of activity and development were not “environmentally sustainable” and agreed that the achievement of sustainable development called for significant changes in current patterns of development, production, consumption and behaviour.27 The Council did not specify, though, what kind of changes it meant and within which time span this was to be achieved. The Commission’s proposal for a Sixth Environmental Action Programme, made in 2001,28 recognised that sustainable development could not be achieved by environment policy alone. “It will require the commitment of all policymakers, including environment, across the full range of Community policies, seeking to achieve the optimal balance of economic, social and environmental objectives.” Thus, the environmental action programme represented the environmental dimension of a wider Community strategy for sustainability. Environmental integration was the mechanism to help ensure that the other policy areas responded to the environmental problems.29 The proposal identified as main, “persistent problems” the emission of greenhouse gases, the loss of biodiversity, soil loss and degradation, increasing waste volumes, the build-up of chemicals in the environment, and increasing pressure on the environment coming from transport, energy use, tourist activities, land-take for infrastructure etc. When the European Parliament and the Council adopted the Sixth Environmental Action Programme, they largely agreed to the Commission proposal. They underlined the necessity of “full integration of environment protection 25

Commission, Towards sustainability. A European programme of policy and action in relation to the environment and sustainable development (1993) OJ C 138, p. 5.

26 27

Ibid., p. 21.

Council and Representatives of Member States meeting within the Council, Resolution on the 5th Action Programme (1993) OJ C 138 p. 1.

28

Commission, COM(2001) 31 of 24 January 2001.

29

Ibid., p.67s.

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requirements into all Community policies and actions”30 and decided on numerous measures to be taken in order to make this integration of environmental requirements in other policies fully operational. The persistent problems which had been listed by the Commission, were taken up in a more general form in Recital 4 and later by the fixing of the four main priorities of the programme, i.e. climate change, nature and biodiversity, environment and health and quality of life and natural resources and waste. Overall, the Programme formed “a basis for the environmental dimension of the European Sustainable Development Strategy and contribute to the integration of environmental concerns into all Community policy, inter alia by setting out environmental priorities for the strategy.”31 In 2001, the Commission adopted a Communication on sustainable development32 based not only on inputs from the environmental administrations, but from all its services. It took up most of the persistent problems of the proposal for the Sixth Environmental Action Programme, identifying as the main threats to European sustainable development global warming, hazardous chemicals, poverty, the ageing of the population, loss of bio-diversity and of soil, the increase in waste volumes and transport (congestion). It suggested a number of actions to change the unsustainable trends in these areas: improvement of policy coherence – which meant the integration of environmental requirements into the other EC policies; more market-based approaches; investment in science and technology; improved communication and efforts to mobilise citizens and business; and consideration for enlargement and global problems. As can be seen, these measures did not directly refer to the identified problems, but constituted rather, as the Commission called it, a “new approach to policy-making”. The Commission also indicated that the European Council would review, at its annual spring meeting, “all dimensions of sustainable development”.33 The European Council, at its meeting in June 2002 in Gothenburg,34 agreed on a strategy for sustainable development based on the Commission’s communication of 2001. This strategy “completes the Union’s political commitment

30

Council, Decision 1600/2002 laying down the Sixth Community Environment Action Programme, (2002) OJ L 242 p. 1, Articles 2(4), 2(6), 3(3) and 3(7). This Action Programme mentions the notion of “sustainable development” or “sustainable” not less than 64 times.

31

Ibid., Article 2(1).

32

Commission, A sustainable Europe for a better world. A European Union Strategy for sustainable development, COM(2001) 264 of 15 May 2001. In 2002, this Communication was completed by a second communication, Towards a global partnership for sustainable development, COM(2002) 82 of 13 February 2002. This communication focused mainly on the external dimension of sustainable development.

33

Commission COM (2001) 264 of 15 May 2001, section IV.

34

Gothenburg European Council (15-16 June 2001), http://europa.eu/european_council/conclusion/ index_eu.htm. This decision had already been preceded by a similar declaration at the Stockholm European Council (23-24 March 2001), section 51.

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to economic and social renewal, adds a third, environmental dimension to the Lisbon strategy and establishes a new approach to policy-making.” Subsequently, the Lisbon strategy was constructed as the economic and social contribution to the Community’s sustainable development strategy. Yet, the Commission’s yearly report to the spring meetings of the European Council focused on economic growth and jobs,35 as did the European Council. In certain years, the European Council used in this discussion the notion of “environmentally sustainable growth”36; this, however, did not change that economic growth and social questions were at the core of the European Council’s discussions. Thus, at the 2007 spring meeting, the European Council discussed “the renewed Lisbon strategy for growth and jobs”. The environmental questions were raised in this discussion under the heading of integrated climate and energy policy. By the end of 2005, the Commission reviewed its sustainable development strategy.37 It indicated actions in the following areas: climate change and energy,38 public health,39 social exclusion, demography and migration, 40 the management of natural resources, 41 sustainable transport, 42 global poverty and development challenges, 43 Of the unsustainable trends of 2001 the issues of 35

See for example the Council Resolution on the Sustainable Development Strategy of 4 March 2002, annexed to the Presidency conclusions of the Barcelona European Council (2002), annex III p.58, paragraph 21: “The Commission report on the Lisbon strategy does not sufficiently take account of the environmental dimension” (reference see n.32, above).

36

European Council, meeting of 25 and 26 March 2004, Presidency conclusions, paragraph 30; meeting of 23-24 March 2006, paragraph 75 (reference see n.32 above).

37

Commission, On the review of the sustainable development strategy, a platform for action. COM(2005) 658 of 13 December 2005. see also the preceding document of the Commission: The 2005 review of the EU sustainable development strategy. Initial stocktaking and future orientations, COM(2005)37 of 9 February 2005.

38

The key actions announced were: a general announcement to cut greenhouse gas emissions further, beyond 2012; further actions in the climate policy; actions on biomass and bio-fuels; a policy on renewable energy up to 2020; an action plan on energy efficiency.

39

The key actions announced concerned: handling pandemics; a strategy to address aids, coordinate research on the impact of pollutants on health.

40

The key actions announced were: a communication on the demographic challenges, the celebration of a European Year of combating poverty and social exclusion; continue to develop an EC policy on legal and illegal migration.

41

The key actions proposed were: exchange of best experience and practice on shifting taxation from labour to consumption/pollution; a directive on public procurement of green vehicles; the promotion of eco-innovation; an action plan on sustainable production and consumption; halt the loss of biodiversity.

42

The key actions proposed were: a political debate to make alternatives to road transport; examination of the use of infrastructure charging; improvement of the environmental performance of cars.

43

The key actions proposed were: the increase of the volume of aid to 0.7% of Gross Domestic Income by 2015; the increase of effectiveness, coherence and quality of aid policies; the push for an UN Environ-

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dangerous chemical in the environment, the loss and degradation of soil and the increase in waste volumes, had fallen out, without any explanation. Neither was there any question any more of integrating environmental requirements into the other EC policies. And even in the area of transport, a Commission communication of 2006 reneged on the objective to shift transport from roads to rail or water and almost entirely focused on the need to have more roads, more traffic and more transport. 44



4 Discussion of the Findings

Community law and policy have not been able to develop a meaningful interpretation of “sustainable development”. The EC Treaty applied initially, in Article 2, a notion of sustainable growth which meant nothing more than continuous, long-lasting growth. In 1999, the notion of sustainable development was introduced into the EU and EC Treaty, but rather as a catchword than true policy objective; this is evidenced by the fact that it was called a “principle” (EU Treaty) and, at the same time, an “objective” (EC Treaty). While the insertion of the notion in Article 6 EC Treaty seemed to indicate that sustainable environment could not be reached without all economic activities integrating environmental requirements and becoming thus more environmental-oriented, the wording of Article 2 EC Treaty seemed to suggest that sustainable development and the protection of the environment were two separate concepts. This interpretation was later taken over by the Council which considered that the objective of “sustainable development” had nothing to do with the objectives of Article 174 EC Treaty. 45 Secondary Community legislation contains two definitions of sustainable development, both in the context of development policy. These notions are extremely broad and it may be doubtful whether they really are legal definitions. Indeed, their wording is so broad that it is difficult to imagine, on the one hand, any legal consequence in cases of non-compliance or, on the other, anybody being able to completely comply with these definition-descriptions. In other legal texts that were examined on fisheries policy, regional policy and development policy, the notion of sustainable development or “sustainable – combined with “tourism”, “urban development” and many other notions – is inflationary. However, the notion is not legally defined. Its interpretation thus remains open. In the same way, nobody knows what exactly “sustainable mental Organisation; to ensure, in negotiations within WTO and in bilateral discussions that international trade is used to achieve genuine global sustainable development, in socio-economic terms as well as in environmental terms. 44

Commission, “Keep Europe moving. Sustainable mobility for our continent”, COM(2006) 314 of 22 June 2006.

45

See n.5, above.

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tourism” – to take just this example – means in a concrete case. There are no attempts to specify in detail what sustainable tourism means with regard to water and energy use, land use, coastal zone management, nature (habitat) protection, transport and many other parameters. In the same way, the notion of sustainable fisheries does not specify how it is to be interpreted in a concrete case. The quota for fish catches do not follow the advice of fisheries or environmental experts, but are fixed for political reasons, reasons which tend to clash with environmental advice put forward to prevent overfishing. In all three sectors, the absence of definitions of sustainable development leads in practice to a situation in which those projects that are realised or measures that are taken, are declared to be “sustainable” or to promote sustainable development. This is not the legal way of proceeding. Indeed, in law, there is first a definition or another parameter, whereupon the specific measure or project’s compliance with that definition or parameter is assessed. We can therefore conclude that the legal content of “sustainable development”, as it is used in EC law, is insignificant. Rather, the notion is used to give a coat of green paint to whatever project or measure that is undertaken. This interpretation of the legal texts is confirmed by an examination of the policy statements, strategies and resolutions which were adopted, in the last ten years, on sustainable development. The environmental action programmes which were elaborated and adopted under environmental auspices by, specifically, the environmental administrations of the EC institutions and of Member States, linked environmental protection to sustainable development and laid down measures and actions necessary for promoting sustainable development, or to reverse unsustainable environmental trends. However, these programmes did not become mainstream Community policy. The Community rather chose the political goal of “growth and jobs” (Lisbon Strategy) and declared this to be its main goal. This was mitigated in part by the addition of an environmental dimension to the Lisbon strategy. However, it became quickly clear that this was just lip service. There was no serious attempt to take measures in order to reverse unsustainable environmental trends or even discuss (non‑)progress in the area of environmental protection. The Commission strategies on sustainable development of 2001 and 2005 addressed a good number of unsustainable environmental trends. No serious attempt was made in the following years, though, to systematically analyse or develop solutions to reverse them. The 2005 strategy did not really liaise with the previous strategy. It rather assembled a number of actions which did not necessarily concern the environment and which were planned anyway to show that the Community was trying to move in the general direction of sustainable development. Nor did the Commission feel bound by this strategy, as its communication on transport, adopted only six months later, shows insofar as it deviated on a decisive point from the strategy. Neither the strategy of 2001 nor that of 2005 were items on the European Council’s yearly progress assessment of the Community’s goals.

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5 Concluding Remarks The conclusions from all this are, • “sustainable development” in EC law does not have a meaningful content. It serves to make measures and actions look green; • whatever measure or action is taken, it can be declared as “sustainable”. This is a different concept from a legal notion, against which measures and actions are measured in order to assess their ability to comply with the notion; • since the beginning of the twenty-first century, the political goal of the Community has been growth and jobs. No serious attempts have been made to operationalize the notion of “sustainable development”. No serious attempts have been made either to reverse the trends already considered unsustainable, i.e. the omnipresence and long-term effects of dangerous chemicals, the loss of biodiversity, the loss of soil and its degradation, the increase in waste volumes and the unsustainable tendencies of transport, tourism, fisheries and other sectoral policies.

It goes beyond the scope of this contribution to develop suggestions for future changes. A brief remark must therefore suffice. Two aspects appear to lack serious attention in EC environmental policy – and law – which if addressed might give “sustainable development” a more operational basis. The first is the appalling situation of data on the environment. If one tries to find the data on the long-term effects of chemicals, of soil loss and degradation, of disappearance of plants and animals, of erosion, desertification , air pollution, drinking water quality, waste volumes and hundred other environmental aspect, one is confronted with scarce, scattered, often outdated or otherwise unreliable data. This lack of hard facts is a pervasive feature of all parts of (EC) environmental policy. Neither the European Environment Agency nor the Statistical Office of the Community have so far been able to remedy this deficiency. And of the ex-post evaluation of the effectiveness of existing measures and development of environmental indicators and integration indicators, regular reports and regular data collection and monitoring, announced rather solemnly in the 6th Environmental Action Programme, 46 nothing has materialised as yet. Community Environmental Policy continues to act more on assumptions and objectives than on the basis of hard facts. The Aarhus Convention, ratified by the EC in 2005, 47 and Regulation 1367/2006 which applied the principles of the Aarhus Convention to the EC institutions and bodies, 48 have yet to bring about any noticeable change to this situation. 46 47

Decision 1600/2002 (n.28, above), Article 10.

Decision 2005/370 to adhere to the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters, (2005) OJ L 124 p. 1.

48

Regulation 1367/2006 (2006) OJ L 264 p. 3.

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The second aspect is the failure to make Article 6 EC Treaty operational. Still today, this provision is like a historic monument in the Treaty, which everybody looks at, nods at, and then goes away and forgets. There is no attempt from the side of the Commission to create the necessary administrative structure to make this provision operational 49; contacts between the environmental and the industry, trade, regional, fisheries or development departments are rare; no institutional frame exists for that. In substance, environmental programmes are elaborated by the Commission’s environmental department, discussed in the Environmental Committee of the European Parliament and the environmental working group of the Council and at the end, they are adopted by the environmental ministers in Council. In all this, there is a very limited input of other administrations (transport, agriculture, energy etc). In the same way, energy, transport, industry or other policy or legal instruments are elaborated and adopted with no significant contribution from the environment. This leads to the existence of documents such as those described above, which are mutually inconsistent. It is high time that the – after all, legal – requirement of Article 6 be reconsidered. It might well be that the attempt of reconciling sustainable development with the Lisbon strategy and the protection of the environment can only be achieved by a better and more serious implementation of the integration requirement of Article 6 EC Treaty.

49

See, as an example, the European Consultative Forum on the Environment and Sustainable Development: Sustainable governance. Institutional and procedural aspects of sustainability. This Forum, created by the Commission in 1993, was dissolved in 2001.

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Bibliography Cloos et al. (1993) Cloos, Jim – Reinesch, Gaston – Vignes, Daniel – Weyland, Joseph: Le Traité de Maastricht, Genèse, analyse, commentaires, Bruxelles: Bruylant 1993; European Consultative Forum on the Environment and Sustainable Development: Sustainable governance. Institutional and procedural aspects of sustainability. Luxembourg 2000.

Krämer (2007) Krämer, L.: EC Environmental Law. 6th edition. London: Sweet & Maxwell 2007.

Krämer (2002) Krämer, L: “Thirty years of EC environmental law : perspectives and prospectives”, The yearbook of European environmental law, Vol.2, Oxford, Oxford University Press, 2002, p. 155-182.

Sand (2007) Sand, Peter H. Sustainable development – of forests, ships and law. Some historical annotations. Environmental Policy and Law 2007, p. 201.

Table of Cases • Case C-62/88 Greece v Council (1988) ECR 1527. • Case C-70/88 European Parliament v Council (1991) ECR I-4561.

Table of Legislation • ACP-EC Partnership Agreement (Cotonou) (2000) OJ L 317 p. 3; amended (2005) OJ L 209 p. 27. • Regulation 2393/2000 on the full integration of the environmental dimension in the development process of developing countries (2000) OJ L 288 p. 1. • Regulation 2394/2000 on measures to promote the concentration and sustainable management of tropical forests and of other forest (200) OJ L 288 p. 6. • Regulation 1080/2006 on the Regional Development Fund (2006) OJ L 210 p.1. • Regulation 1081/2006 on the Social Fund (2006) OJ L 210 p. 12. • Regulation 1083/2006 concerning general provisions for the structural funds (2006) OJ L 210 p. 25. • Regulation 1084/2006 on the Cohesion Fund (2006) OJ L 210 p. 79.

List of Abbreviations ed EEC

Edition European Economic Community

EC

European Community

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EU i.e. OJ p v

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European Union id est (that is to say) Official Journal of the European Union page versus

chapter 4.2

Sustainable Development and EU Waste Law Nicolas de Sadeleer

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sustainable development and eu waste law

1 Introduction

The core issue of this chapter is to assess whether EC waste management law has been breathing life into the bare bones of the concept of sustainable development. The chapter starts by considering political orientations endorsed by the EC institutions, moving on to address the issues of waste management hierarchy and producer responsibility. Lack of space prevents a full exploration of the vast body of directives and regulations dealing with waste management issues. Celebrated by environmental NGOs, disparaged by some undertakings, EC waste law is no stranger to controversies. Some of its directives have sparked intense debate. Given that the focus of this book is sustainable development, this chapter focuses on but a few issues where waste management objectives laid down by the EC lawmaker are closely related to sustainable development. In particular, we will analyse a number of key provisions of Directive 2006/12/EC, which is a framework directive setting out the general principles in this area, and as such a directive that determines the broad parameters within which Member State action on waste management is to take place. The principles laid down in this framework directive have been fleshed out in rules set out in more specifically focused directives (on, for instance, the management of sludge, waste oil, PCBs, PCTs, hazardous waste, batteries, incineration, land filling operations…), some of which address waste streams (packaging, end of life vehicles, electric and electronic waste). With respect to this last category of directives, we discuss some of the issues arising while implementing their take-back and recovery obligations with the aim of highlighting the role of these obligations for fostering a sustainable economy. In other words, sustainable development runs like a red thread through this chapter. Last, one should be aware that this cluster of directives is subject to continuous modification, in particular in an area of better regulation. For instance, Directive 2006/12/EC is due to be replaced by a new framework directive in the course of 2008. Whether this new directive will be more or less stringent remains to be seen.



2 Sustainable Development and Waste

In looking at the ways in which sustainable development impinges upon the evolution of waste law, one needs at the outset to give careful consideration to the notion of waste, a concept that occupies centre stage in discussions about waste management. The term waste has many different * 

Nicolas de Sadeleer is Professor of law, Facultés universitaires Saint-Louis, Brussels.

See de Sadeleer (1995); van Calster (2006).



C-114/01 AvestaPolarit Chrome Oy [2003] ECR I-8725, paragraph 48.

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meanings in both ordinary language and the scientific literature. Nonetheless, dictionary definitions are hardly enlightening with regard to the exact significance of the term. Indeed, waste is defined in a relatively vague manner as “unwanted matter or material of any type, often that which is left after useful substances or parts have been removed”, “no longer useful and to be thrown away” or “eliminated or thrown aside as worthless after the completion of a process.” Such definitions are of minimal use for lawyers. As a matter of fact, waste is characterized by its very relativity. The “uselessness” of the material, which allows one to qualify it as waste, actually varies according to time, place and people. An object which appears “useless” to one person at a given time and place, may be useful, even essential, to another person, at another place or time. Waste also comes in many guises. In one way or another, all sectors of our consumer society produce waste. Indeed, the numerous regulations which define waste reflect this diversity. Throughout legislation, one finds definitions of “industrial waste”, “household waste”, “medical waste”, “agricultural waste”, “inert waste” and “special waste”. Moreover, the fact that some pose greater risks than others has caused legislators to distinguish between “dangerous and toxic waste” and “ordinary waste”. Waste is also unreliable because its evolution is far from uniform, and very much the result of a dynamic, not static, process. Time is a central factor. Although much domestic waste disappears quickly because it is biodegradable, other wastes — notably nuclear waste — last for thousands of years. Treatment and disposal processes also determine the destiny of waste. Wastes can be disposed of in radically different ways: when solid waste is incinerated, it is dispersed into the atmosphere as particles of pollution; liquid effluents dissolve into the water table or the oceans; waste in landfills simply disappears beneath the ground. Alternatively, however, waste can replace raw materials and thus be reintroduced into the production cycle. It goes without saying that how we deal with waste has important consequences for the protection of the environment. Scattering waste into the air, water and soil can adversely affect these different habitats (atmospheric pollution, contamination of soils and water tables, algal blooms and so on…), whilst saving and reusing waste as secondary raw materials prove less harmful to the environment. Hence, the notion of waste varies greatly in space, time and circumstance. In the course of its life cycle a particular substance may qualified as a product, waste, or secondary raw material according to the use to which it is put, or the norm in force. Put simply, a substance that is waste at one moment may, months or years later, have become a resource, thanks to technical advances (introduction of new technology) or changed economic (rising price of raw materials) 

Cambridge International Dictionary of English (1995).

 

Oxford Advanced Learner’s Dictionary (1989).

The Shorter Oxford English Dictionary (1956).

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conditions. What was originally waste can now be fed into the production process as a raw material. Despite of these hair-splitting discussions on whether this or that is a product, by-product or residue, it goes without saying that our societies are consuming more products and, as a result, discarding more waste in the environment. The treatment of industrial, household, agricultural waste has become a huge business as well as a serious political problem. Needless to say, discarding waste in landfills and burning residues in incinerators amount to a sheer waste of resources. Conversely, whenever companies are able to recycle waste and other substances, they prevent the production of further waste. In particular, by recycling large quantities of waste, companies increase the supply of secondary raw materials on the market. Such an approach appears to be entirely consistent with sustainable development, the purpose of which is to save resources for future generations.



3 Sustainable Waste Management Enhanced in a Flurry of Soft Law Instruments

One of the European Union’s fundamental objectives is sustainable development. It is enshrined in Article 2 of the European Community Treaty (EC) calling for “a harmonious, balanced and sustainable development of economic activities” and Article 3 EC requiring the integration of environmental requirements into the definition and the implementation of EC policies, “in particular with a view to promoting sustainable development.” It was reinforced by the European Council meeting in Gothenburg in 2001, where an environmental dimension was added to the Lisbon Process, in the form of a strategy for sustainable development. So far, there has been no shortage of documents from EU institutions providing guidance on the handling of products and residues. From these documents, one should take into account the following strategies. The European Parliament and the Council stated in the Management of Natural Resources and Waste chapter of the Sixth Environmental Action Programme that the consumption of renewable and non-renewable resources should not exceed the carrying capacity of the environment with a view to achieving a decoupling of resource use from economic growth. Accordingly, waste is not a separate but an integral part of what is called ‘sustainable use of natural resources and management of wastes’. With regard to waste reduction, the specific target was to reduce the quantity going to final disposal by 20 per cent by 2010 and 50 per cent by 2050. In



Decision 1600/202/EC of the European Parliament and of the Council of 22 July 2002 laying down the Sixth Community Environment Action Programme (OJ L 242 of 10.9.2002, p. 1).

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addition, less precise objectives were laid down in the Sixth Action Programme, among which were: • achieving a significant overall reduction in the volumes of waste generated through waste prevention initiatives, better resource efficiency and a shift towards more sustainable production and consumption patterns; • a significant reduction in the quantity of waste going to disposal and the volumes of hazardous waste produced while avoiding an increase of emissions to air, water and soil; • encouraging re-use and for wastes that are still generated: the level of their hazardousness should be reduced and they should present as little risk as possible; preference should be given to recovery and especially to recycling; the quantity of waste for disposal should be minimised and should be safely disposed of; waste intended for disposal should be treated as closely as possible to the place of its generation, to the extent that this does not lead to a decrease in the efficiency in waste treatment operations. Among the actions to be undertaken with the aim of fleshing out these broad objectives, one should stress the establishment of a strategy for the recycling of waste, and inclusion of waste prevention into the integrated product policy and Community strategy on chemicals. On June 18 2003, the Commission published a Communication to the Council and the European Parliament entitled “Integrated Product Policy Building on Environmental Life-Cycle Thinking” (COM(2003) 302 final), whose primary aim is to reduce the environmental impacts of products throughout their life cycle, in other words “from cradle to grave”. Last, on 21 December 2005, the European Commission proposed a Strategy on the Sustainable Use of Natural Resources used in Europe (COM(2005) 670 final). Its objective is to reduce the environmental impacts associated with resource use and to do so in a growing economy. According to the Commission, focusing on the environmental impacts of resource use will be decisive factors in helping the EU achieve sustainable development.



4 Unsustainable Trends

Despite the laudable intentions of the soft law instruments discussed above, the situation is not improving at all. Let me give you a few examples. First, given that the variety of products and services is increasing, their overall quantity is increasing too. As a result, consumers are producing more waste than ever before. For instance, the yearly municipal waste production per European is around 580 kg. Whereas 36 million tons of hazardous waste were

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produced by the 15 Member States in 1997, this increased in just three years to some 40 million tons (2000). Second, despite technological progress, production prevails strongly over prevention. Even the reuse of products is not making headway. Given that products are becoming more complex, it is also increasingly difficult and expensive to repair them. As a result, products have shorter life spans because consumers will be keener to discard them if they can replace them by more sophisticated products. In that respect, the marketing of several generations of mobile phone in a very short period is a good case in point. Third, despite the obligations laid down in the former directive 2006/12/EC to pursue a preventive policy, disposal still prevails over recycling. So far, the few directives encouraging recycling have not managed to turn the tide. By way of illustration, around 70 per cent of municipal waste is dumped and only 30 per cent recycled. Fourth, the sheer number of transfrontier shipments of waste within the EU and with third states belittles the principle of proximity, according to which waste should be treated as close as possible to its production site (article 5.1 Directive 2006/12/EC; article 11.1, Regulation no 1013/2006 concerning waste shipments).



5 Waste Management Hierarchy: Emphasis Being Given to Prevention

EC waste law does not focus exclusively on end-of-the pipe problems (incinerators, landfills, etc.). It gives emphasis too to the need to foster better techniques to reduce the quantity and improve the quality of the waste to be treated. In so doing, the dangers entailed by waste operations should be reduced. For instance, pursuant to Article 4 of the Waste framework Directive, Member States shall take the necessary measures to ensure that waste is recovered or disposed without endangering human health and without using processes or methods which could harm the environment…. To reduce the environmental risks entailed by waste management operations, Member States are called upon to establish an integrated and adequate network of disposal installations … taking account of the best available technology not involving excessive costs. (Article 5.1 Directive 2006/12/EC)

This network must enable the recovery of waste by means of the most appropriate methods and technologies in order to ensure a high level of protection for the environment and public health (article 5.2 Directive 2006/12/EC). Thus, in these broadly phrased provisions, the EC lawmaker places emphasis on the

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development of better technologies, a trend that could be favourable indeed to a more sustained economy. The fact is that Member States’ room for manoeuvre has been reduced since the entry into force of Directive 75/442/EC, which was replaced, for cosmetic purposes, by Directive 2006/12/EC. Article 3 of Directive 2006/12/EC sets out in regressive order of priority several waste management solutions. In other words, the directive lays down a waste hierarchy that must be applied at national level. Article 3 reads as follows: 1. Member States shall take appropriate measures to encourage: (a) first, the prevention or reduction of waste production and its harmfulness, in particular by: (i) the development of clean technologies more sparing in their use of natural resources; (ii) the technical development and marketing of products designed so as to make no contribution or to make the smallest possible contribution, by the nature of their manufacture, use or disposal, to increasing the amount or harmfulness of waste and pollution hazards; (iii) the development of appropriate techniques for the final disposal of dangerous substances contained in waste destined for recovery; (b) second: (i) the recovery of waste by means of recycling, re‐use or reclamation or any other process with a view to extracting secondary raw materials; or (ii) the use of waste as a source of energy. 2. Member States shall take the necessary measures to prohibit the abandonment, dumping or uncontrolled disposal of waste.

Hence, Member States must comply with this hierarchy of policy measures: first, prevention, including among other things the use of cleaner technologies and the marketing of environmentally friendly products; second, recovery, including but not limited to recycling; third, disposal. It follows that Member States are called upon to enact regulatory as well as financial measures with the view to preventing the production of waste. As a matter of law, this hierarchy does not entail clear-cut legal obligations. Member States are allowed to depart, in certain cases, from this hierarchy. Besides, given that it was established in the early 90s, there is no mention of sustainable development. However, the EC Commission has called on the European Parliament and Council to enact a new framework directive in order to replace Directive 2006/12/EC. In the ongoing debate, the hierarchy of waste treatment operations has been dogged by controversy. There exist two diametrically opposed views: whereas environmental NGOs argue in favour of a more elaborated waste management hierarchy, clarifying the order of priority of the different waste management operations, business

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interests favour a flattening the existing hierarchy (incineration is placed on equal footing with recovery) with the aim of deregulating EC as well as national regulations. The environmentalists’ point of view can be synthesized as follows: prevention, reuse, material recycling, energy recovery and last disposal. Accordingly, prevention represents the first priority, reuse constitutes the second, and recycling is preferred to energy recovery, as, firstly, the energy gained by material recycling is normally greater than other energy recovery processes and, secondly, recycling contributes more to waste prevention than energy recovery. As a matter of fact, by placing greater emphasis on preventive methods as well as reuse, the EC lawmaker can encourage a sustainable approach. Indeed, by reducing the production of waste, fewer products would be discarded. Whether this more elaborated hierarchy will be adopted remains to be seen. We guess that the EC lawmaker will seek at the end of the day a compromise. So far, the European Parliament adopted its position at first reading on 13 February 2007 with a view to the adoption of the modified framework Directive on waste. In our view, this position expresses better the need to flesh out sustainable development within the waste management area. Article 1 of the EP’s position reads as follows: This Directive lays down measures with a view to minimising the overall environmental and health impacts of the generation and management of waste, and contributing also to a reduction in the use of resources.

For these purposes, as a general rule, the Member States and the Community shall take measures, in descending order of priority, for: • t he prevention and reduction of waste; • t he re-use of waste; • t he recycling of waste; • other recovery operations; • t he safe and environmentally sound disposal of waste. When life-cycle assessments and cost-benefit analyses indicate clearly that an alternative treatment option shows a better record for a specific waste stream, Member States may depart from the priorities established in the second paragraph. These assessments and analyses shall be made public and be reviewed by independent scientific bodies. Consultation shall be undertaken in order to ensure a full and transparent process, including stakeholder and citizen involvement. If necessary, the Commission will draw up guidelines for the use of such assessments and analyses. On 28 June 2007, the Council reached a unanimous political agreement on a draft directive on waste. As a result of the debate, no modifications were made to the text as regards waste hierarchy.

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The following table summarizes the opposed points of view.



CURRENT WASTE HIERARCHY UNDER DIRECTIVE 2006/12/EC

OPTIMAL ENVIRONMENTAL WASTE HIERARCHY

OPTIMAL BUSINESS STRATEGY

Prevention Recovery (Reuse, Recycling,Energy recovery) Disposal

Prevention Reuse Recovery (material recycling) Recovery for use as fuel Disposal to landfill

Flattening the existing hierarchy (incineration is placed on equal footing with recovery) with the aim of deregulating

6 The Scope of the Waste Legislation Impinges upon the Objective of Prevention

It must be kept in mind that the implementation of the first objective of the waste management hierarchy – qualitative as well as quantitative prevention – consistently depends on the scope of the legislation and on the definition of waste elaborated by the EC lawmaker. As a matter of course, the controversies as regards the distinction between waste and non-waste on the one hand and between hazardous waste and non-hazardous waste on the other have a significant impact on the implementation of a preventive strategy at national and regional level. In order to avoid the Caudine Forks of waste regulation, including the financial burden of waste transfer, some lawmakers as well as some economic operators have not hesitated to qualify residues as either products or by-products. By way of illustration, the German lawmaker enacted in 1986 legislation that declared in essence that recoverable items were not waste. By the same token, the Italian lawmaker elaborated in the 80s a new definition of waste excluding recoverable materials. In both cases, the European Court of Justice (ECJ) ruled that these provisions were inconsistent with Community law. Disqualifying a number of residues deemed to be waste (qualifying them instead as products or by-products for instance) means less waste to be treated. In endorsing such an approach, public and private sectors look forward to saving much of the cost of new technologies or recycling operations because there will be a less waste to deal with. Hence, the willingness to reduce the scope of ambit of waste legislation by qualifying residues as either products or by-products could jeopardize the obligation to achieve a preventive policy for all objects and materials being discarded. This calls for a closer analysis of the waste definition that has already attracted widespread controversy.



Case C-422/92, Commission v Germany [1990] ECR I-1097; Case C-304/94, Tombesi [1997] ECR I-3561.

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The definition of the concept of waste laid down in Directive 2006/12/EC on waste constitutes the keystone of all sectoral regulation on waste products, including the Community rules pertaining to the trans-frontier movement of waste. The definition runs as follows: “any substance or object in the categories set out in Annex 1 which the holder discards or intends or is required to discard” is deemed to be waste. Consequently, any substance or object falling under this definition is subject to the administrative obligations relating to the collection, sorting, storage, transportation, international transfer and treatment methods stemming from the various waste directives and regulations. The European Community definition has thus been at the root of various controversies not only in industrialized countries such as the United Kingdom and Netherlands but in all other Member States where national authorities and public officials cross swords with business on the issue of whether such and such a product constitutes waste or not. Against this background the ECJ has – for a number of years – been trying to construe this definition according to clear and concrete criteria. Various criteria have consequently been set forth by the Court for determining when and how an object or substance falls within the scope of former Directive 75/442/ EEC. In particular, the ECJ has emphasized that the application of the concept of discarding implies that all the “circumstances” indicating whether the holder has the intention or obligation to discard be taken into consideration. Let us turn to the most important factors to take into consideration when assessing whether a substance or object falls under the definition of waste: • t he object becomes subject to a disposal or recovery operation under Appendix II of the Directive, or an analogous operation, even where it is destined for re-use; 10 • t he holder of the object uses a type of treatment which is commonly used to get rid of waste;11



The EC Commission Communication on the Prevention and Recycling of Waste of 27 May 2003 describes the definition as the keystone of waste legislation (p. 38). Consequently, changes to it are likely to affect an array of legislative instruments, and as such must be consistent with the objectives of all of them, and also with the principles of legal certainty and legitimate expectations.



Joined Cases C-418/97 & C-419/97, ARCO Chemie [2000] ECR I-4475, paras. 73, 88 and 97; C-9/00 Palin Granit [2002] ECR I‑3533, para. 25. A complete discussion of all the relevant criteria is impossible in the space available here. For a critical analysis, e.g. Krämer (2003) 3-14; de Sadeleer (2005a) pp. 4658; de Sadeleer (2005b) pp. 46-58; de Sadeleer (2006) pp. 243-266.

10

Joined cases C-304/94, C-330/94, C-342/94 and C-224/95 Tombesi [1997] ECR I-3561; Inter-Environnement Wallonie (1997) ECR I-7411, paras. 25 & 26.

11

Case C-419/97 ARCO Chemie [2000] ECR I-4475, paras. 69 and 73. However, the fact that the burning of a residue (petroleum coke) is a standard waste recovery method is not relevant since the purpose of a refinery producing this residue is precisely to produce different types of fuel (C-1/03, Saetti Order, 15 January 2004, paragraph 46).

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• t he absence of an economic benefit,12 in particular where the holder has to pay a specialist company to undertake the collection, transportation and final treatment of the waste; • t he method of production indicates that the object is unwanted; 13 • t he fact that the used substance is a production residue; 14 • t he object is a residue whose composition is not suitable for the use made of it, or where special environmental precautions must be taken when it is used;15 • where no use other than disposal can be envisaged for a substance (burial, incineration without energy reclamation);16 • t he object is included in Appendix I of the Waste Framework Directive17 or in the European Waste Catalogue;18 • where the company holding the object has accepted that it is waste.19 Of course, no a priori preference can be given to any one criterion; they must rather be applied on a case-by-case basis in the light of the particular circumstances. That said, in highlighting all these criteria, the Court has clearly endorsed a rather broad vision of the notion of waste. Moreover, the term waste must be interpreted in the light of the objectives of the Directive,20 which refer to Article 174 (2) EC guaranteeing “a high level of protection” of the environment, corre-

12 13

Tombesi, paras. 47, 48 & 52; Case C-9/00 Palin Granit Oy [2002] ECR I-3533, paragraph 38.

ARCO Chemie, paras. 83-87; Palin Granit Oy, paragraph 33; C-457/02, Niselli, 11th November 2004, paragraph 43.

14

ARCO Chemie, paragraph 84; Palin Granit Oy, paragraphs 32-37 ; Niselli, paragraph 42; Saetti, paragraph 34.

15

ARCO Chemie, paragraph 87; Palin Granit Oy, paragraph 44.

16 17

ARCO Chemie, paragraph 86.

Annex I clarifies and illustrates that definition by providing lists of substances and objects which can be classified as waste. However, the list of objects and residues is only intended as guidance, and the classification of waste is to be inferred primarily from the holder’s actions and the meaning of the term ‘discard’.

18

Drawing on the Appendix I classification, the EWC has been enacted by Commission decision 2000/523/EC (3 May 2000), as amended by the decision of 16 January 2001. This list has also been amended by Commission decisions 2001/118/EC and 2001/119/EC and the Council decision 2001/573/ EC, dated respectively 16 and 22 January and 23 July 2001 (OJ L 47, pp. 1 and 32, and L 203, p. 18) and entered into force on 1 January 2002. See the use of this criterion by Advocate General J. Kokott in Case C-1/o3 Paul van de Walle [2004] ECR I-7613,, paragraph 29.

19

ARCO Chemie, paragraph 73. Considered in isolation, this criterion is not relevant (Saetti Order, paragraph 46).

20

Joined Cases C-206/88 & C-207/88 Vessoso & Zanetti [1990] ECR I-1461, paragraph 12; ARCO Chemie, paragraph 37; Palin Granit Oy, paragraph 25.

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sponding with the obligation set out in Article 4 of the Directive.21 Accordingly, the verb ‘to discard’ cannot be interpreted restrictively.22 It follows that the definition interpreted by the ECJ is rather extensive and encompasses a wide array of residues. As a result, the obligation to prevent waste being discarded applies to a broad range of socio and economic activities. Hence, a more sustainable approach has to be applied to every sector producing waste, as they are being called upon, first, to prevent waste, second, to recover waste by means of various operations.



7 Scope of the Waste Definition: Economic Reutilization

Even when waste is likely to be marketed, it still constitutes waste. Hence the waste framework directive does not exclude from its scope of ambit residues that have an economic value. These residues will have to be treated as waste until they are disposed of or recovered. The ECJ has been clearly endorsing this interpretation. In response to two preliminary questions, under Article 234 EC, from the Pretora di Atri and the Pretora di San Vito al Tagliamento in Italy, the Court of Justice confirmed that even those substances capable of being economically re-used could be regarded as waste. In these cases, the operators of a transport business were prosecuted for illegally transporting substances defined by the Italian law as waste. The defence argued that the substances in question escaped the terms of the definition in the Italian law because they were capable of being re-used and, as such, were neither abandoned nor destined to be abandoned. The references before the Court involved, inter alia, the question of whether the notion of waste, as defined in Directives 75/442/EEC and in Directive 91/156/EEC on toxic and dangerous waste, also included objects capable of being commercially recycled. In his conjoint opinions on the questions put to the Court, Advocate-General F.G. Jacobs decided that neither definition contains any suggestion that the intention of the holder is relevant. (…) the question whether a substance or object poses a threat to human health or the environment is an objective, not a subjective, one. It has nothing to do with the intention of the person disposing of the substance. Nor is the possibility of such a threat affected by whether or not the product can be recycled or reused.23

21

ARCO Chemie, paragraph 40; C-9/00, Palin Granit Oy, paragraph 23.

22 23

ARCO Chemie, paragraphs 36-40 ; Van de Walle, para 45.

Opinion of Advocate General F.G. Jacobs on cases 206/88, 207/88 and 359/88, 13th December 1989, ECR I-1461, at p. 1470.

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The Court followed the Advocate-General in the first judgement, replying that under the terms of Directives 75/442/EEC and 91/156/EEC it appeared that a substance of which its holder disposes may constitute waste (…) even when it is capable of economic [sic.] reutilization. 24

Article 1 of each of those directives refers generally to any substance or object of which the holder disposes, and draws no distinction according to the intentions of the holder disposing thereof. Moreover, those provisions specify that waste also includes substances or objects which the holder ‘is required to dispose of pursuant to the provisions of national law in force’. A holder may be required by a provision of national law to dispose of something without necessarily intending to exclude all economic [sic.] reutilization thereof by others. (…) The essential aim of Directives 75/442 and 78/319, set out in their preambles in the third and fourth recitals respectively, namely the protection of human health and the safeguarding of the environment, would be jeopardized if the application of these directives were dependent on whether or not the holder intended to exclude all economic reutilization by others of the substances or objects of which he disposes.25 It follows that waste management is an economic activity likely to be subject to preventive requirements aiming at health and environmental protection.



8 Scope of the Waste Definition: The Difference Between Waste and By-products

When objects or substances are used in their existing form by third parties to whom they have been transferred, they need not necessarily be considered as waste. For example, a used motor vehicle sold to a new owner that continues to use it as a vehicle is not a waste. Moreover it transpires that a good many economic operators consider that too broad an interpretation of the concept of waste would be prejudicial to their activities.26 Leaving aside the at times excessive red tape and waste management taxes, the subjective understanding of the act of discarding is not regarded as capable of taking into account the hard facts of commercial life. Operators do not consider production residues as having been abandoned when they are usefully re-integrated as replacements for raw materials. Manufacturers would also favour narrowing the scope of waste regulations to substances destined for elimination and those requiring physico-chemical treatment prior to recovery. 24 25

Cases C-206/88 and 207/88, Vessoso and Zanetti [1990] ECR I-1461.

Ibid., at pp. 1477-8.

26

See in particular the criticisms of Smith II (1993) p. 91.

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The upshot of this would be that any substance which could be re-used would fall outside the law on waste by virtue of its status as a by-product. According to many undertakings, where certain requirements are satisfied, to favour the immediate re-use of production residues by according them their own particular status would effectively limit the scope of the concept of waste. The position can be summarized as follows. A substance or an object – such as a production residue – should not be classed as waste when its holder is able to find an acceptable use as a product or secondary raw material, so long as such use is complete, direct, effective and can also be distinguished from waste disposal methods. In Palin Granit Oy and AvestaPolarit Chrome Oy, and more recently in Niselli, the Court of Justice appears to have accepted the latter view, albeit in a somewhat confused manner. It introduced a distinction between by-products which undertakings do not wish to discard within the meaning of Article 1(a)(i) of the framework directive and residues covered by the provisions of the directive. According to the Court, “there is no reason to hold that the provisions of Directive 75/442 which are intended to regulate the disposal or recovery of waste apply to goods, materials or raw materials which have an economic value as products regardless of any form of processing and which, as such, are subject to the legislation applicable to those products”.27 In order to fall outside the definition of waste, several conditions must be satisfied. Since the definition of waste is framed in broad terms,28 these conditions must be interpreted strictly. According to the Court, “the reasoning applicable to by-products should be confined to situations in which the reuse of the goods, materials or raw materials is not a mere possibility but a certainty, without any further processing prior to reuse and as an integral part of the production process”.29 The Court then went on to indicate that the holder must additionally “lawfully” use the substance.30 Needless to say, the ECJ case law on by-products entails the risk that a wide number of residues will fall outside the scope of waste legislation insofar as they are immediately reused. In recent judgments, the ECJ has held, for instance, that the slurry generated by the livestock farms, given that it is used as an agricultural fertiliser in the context of rules for spreading in accordance with good agricultural practice laid down by public authorities, is not ‘waste’ within the meaning of the Framework waste Directive.31 One has to keep in mind that the Commission argued at length before the ECJ that the slurry was at the origin of water pollution. As a result, no steps will be taken either by public authorities 27

Palin Granit Oy, paragraph 35; AvestaPolarit Chrome Oy, paragraph 35.

28

Palin Granit Oy, paragraph 36; AvestaPolarit Chrome Oy, paragraph 36.

29 30 31

Palin Granit Oy, paragraph 36; AvestaPolarit Chrome Oy, paragraph 36.

AvestaPolarit Chrome Oy, paragraph 43.

See in particular ECJ, case C-416/02 Commission v. Spain [2005] ECR I-7487, paras. 65-66; case C-121/03 Commission v. Spain, [2005] ECR I-7569, paras. 90 and 92.

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or undertakings to prevent the production of these residues. As a matter of fact, this new jurisprudential trend contradicts the broad interpretation of the notion of waste endorsed by the ECJ so far.



9 Recovery Operations: The Production of Secondary Materials

Pursuant to the waste hierarchy, the Member States are called upon to recycle waste materials whenever they are unable to prevent waste production. Hence, the recovery of waste, the second objective of the waste management hierarchy, should foster a new economy, where secondary raw materials are replacing raw materials. Recovering waste appears to be consistent with a sustainable economy, the purpose of which is to save energy and resources for the sake of future generations. Among the various recovery operations, recycling is of utmost importance. The promotion of recycling operations could entail a number of advantages for undertakings dealing with recycling operations. They could market the secondary raw materials they extract from their waste instead of discarding the residues. In addition, these companies would be eligible for state aid, or subject to less stringent environmental regulations, in particular with respect to international trade.32 Despite its importance to a sustainable economy, the concept of recycling is rather incompletely defined under EC law. Although favouring in Article 3 (1)(b)(i) actions designed to obtain such materials, Directive 2006/12 defines neither recycling nor secondary raw material. The transformation of waste with a view to producing usable raw materials constitutes a recovery operation for the purposes of Appendix II of the Waste Framework Directive. Advocate General Jacobs has stressed the role of recovery operations as an essential criterion for distinguishing secondary materials from waste products. In his opinion, recovery can be conceived as “a process by which goods are restored to their previous state or transformed into a useable state or by which certain usable components are extracted or produced.”33 Nonetheless, a few waste streams directives define recycling. For instance, Directive 94/62/EC of 20 December 1994 on packaging and packaging waste defines recycling as “the reprocessing in a production process of the waste materials for the original purpose or for other purposes including organic recycling but excluding energy recovery” (art. 3.7). 32 33

de Sadeleer and Wemaëre (2007) pp. 329-366.

Opinion of Advocate General Jacobs in Tombesi, paragraph 52. Applied to the particular case of residues or by-products of a production process, this definition allows for the elaboration of a range of criteria for differentiation, even if the Advocate General recognised that a potentially large number of marginal cases could in practice arise.

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In Mayer Parry Recycling Ltd case,34 the ECJ brought a number of clarifications as to the scope of that definition. The ECJ held, 66. Such a process requires the packaging waste to be worked in order to produce new material or to make a new product. In this sense, recycling can be clearly distinguished from other recovery or waste-processing operations referred to by the Community legislation, such as reclamation of raw materials and compounds of raw materials (points R 3, R 4 and R 5 of Annex IIB to Directive 75/442), preprocessing, mixing or other operations, which result only in a change in the nature or composition of the waste (see Article 1(b) of Directive 75/442). 67. Also, the waste may be regarded as recycled only if it has been reprocessed so as to obtain new material or a new product for the original purpose. This means that the waste must be transformed into its original state in order to be useable, where appropriate, for a purpose identical to the original purpose of the material from which it was derived. In other words, metal packaging waste must be regarded as recycled where it has undergone reprocessing in the course of a process designed to produce new material or make a new product possessing characteristics comparable to those of the material of which the waste was composed, in order to be able to be used again for the production of metal packaging. 68. The definition of recycling states in addition that the waste may be reprocessed in a production process for the original purpose or for other purposes. It follows that the concept of recycling is not limited to the situation where the new material or new product, possessing characteristics comparable to those of the original material, is used for the same purpose of metal packaging. Use for other purposes also features in the concept.

In other words, the Court held that the term “recycling” for the purposes of Directive 94/62/EC on Packaging and Packaging Waste had to be understood as the act of returning that material to its original state, and of re-using it in accordance with its original purpose or for other purposes. Nevertheless, “those other purposes may be of any kind so long as the reprocessing of the packaging waste does not take the form of energy recovery.”35 It follows that undertakings cannot claim to be recycling packaging waste when in fact they are burning it with the aim of recovering energy. It should also be noted that Directive 2000/53/EC of 18 September 2000 on end-of-life vehicles and Directive 2002/96/EC of 27 January 2003 on waste electrical and electronic equipment define recycling in different terms as “the reprocessing in a production process of the waste materials for the original purpose or for other purposes, but excluding energy recovery which means the use of combustible waste as a means of generating energy through direct 34 35

Case C-444/00 Mayer Parry Recycling Ltd [2003] ECR I-6163.

Para. 69.

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incineration with or without other waste but with recovery of the heat” (article 3, e Directive 2002/96/EC and 2.7 Directive 2000/53/EC). Nonetheless, these definitions raise a number of questions. For instance, the EC lawmaker has not enacted provisions on the quality of recycling. This begs the question of whether the possibility to extract 10 kg of raw material from 1000 tons of waste is still a recycling operation.36 In other words, does it make sense to define an operation with such a high waste ratio as recycling? It follows that it is necessary to draw a line between waste and recycling materials. In our view, the pre-processing operations (including sorting, washing, preliminary elimination of toxic substances) that are necessary for the recovery of a substance (e.g. fuel to be used for the production of energy) cannot, however, be equated with a recovery operation depriving the same substance of its status as waste. Put simply, waste cannot therefore be placed beyond the reach of Community or national law on the sole grounds that it has been treated, but without being modified in any essential respect.37 For instance, grinding wood impregnated with toxic substances into a powder is not an operation of such a nature as to “have the effect of transforming those objects into a product analogous to a raw material, with the same characteristics as that raw material and capable of being used in the same conditions of environmental protection”, because it does not eliminate its toxicity.38 Recycling is therefore deemed to have been completed and, by extension, waste to have become a secondary raw material when the substance can be used as a raw material without the need for any supplementary treatment. Were this view not espoused, then it would be possible for waste to lose its classification for the simple reason that it had undergone a particular transformation designed as part of its recovery as a substance. The strict approach endorsed by the ECJ in the above commented cases must be welcomed. Were this approach not endorsed, it would be easy for operators to market their waste as secondary raw materials whenever they have been subject to any kind of pre-processing operation. However, a sustainable economy needs to rely on secondary raw materials that can replace primary raw materials. Therefore, national authorities have to control the stage at which waste may be regarded as recycled. In so doing, the administration must assess whether waste has been reprocessed so as to obtain new material or a new product, a) for the original purpose, in other words, for a purpose identical to the original purpose of the material from which it was derived; b) for another purpose, excluding however energy recovery operations or operations similar to disposal operations. 36 37

Krämer (2007), p. 372.

Tombesi, paras. 53 & 54.

38

Arco Chemie, paragraph 96.

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10 How to Enhance a Sustainable Approach: Look at Waste not in Isolation but as Products

Inspired by the principle of cradle to grave, the EC lawmaker has been placing more emphasis early in this millennium on ‘producer responsibility’ legislation. This approach is epitomized in three major directives. Directive 94/62 on packaging and waste packaging, adopted in 1994, sets forth a number of targets for collection and recycling of waste packaging. Among other obligations, the directive requires Member States to take measures, which may include national programmes, to prevent the formation of packaging waste, and encourages them to develop packaging reuse systems. The Member States must introduce systems for the return and/or collection of used packaging to attain the following targets: • by no later than 30 June 2001, between 50 and 65% by weight of packaging waste to be recovered or incinerated at waste incineration plants with energy recovery; • by no later than 31 December 2008, at least 60% by weight of packaging waste to be recovered or incinerated at waste incineration plants with energy recovery; • by no later than 30 June 2001, between 25 and 45% by weight of the totality of packaging materials contained in packaging waste to be recycled (with a minimum of 15% by weight for each packaging material); • by no later than 31 December 2008, between 55 and 80% by weight of packaging waste to be recycled; • by no later than 31 December 2008 the following targets for materials contained in packaging waste must be attained: 60% by weight for glass, paper and board; 50% by weight for metals; 22.5% by weight for plastics and 15% by weight for wood. As to return, collection and recovery systems, the Directive provides for, in order to meet the objectives laid down in this Directive, that These systems shall be open to the participation of the economic operators of the sectors concerned and to the participation of the competent public authorities. They shall also apply to imported products under non-discriminatory conditions, including the detailed arrangements and any tariffs imposed for access to the systems, and shall be designed so as to avoid barriers to trade or distortions of competition in conformity with the Treaty. (article 7)

At a later stage, the EC lawmaker enacted two more sophisticated directives: Directive 2000/53/EC of 18 September 2000 on end-of-life vehicles (ELV) and Directive 2002/96/EC of 27 January 2003 on waste electrical and electronic

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equipment (WEEE). As a matter of course, these two directives signal a shift away from traditional ‘end-of-the-pipe’ environmental legislation governing waste management and towards producer responsibility. Accordingly, producers are deemed to be responsible not only for the safety of their products (see Directive 2001/95/EC of 3 December 2001 on general product safety), but also for the waste-treatment of their end-of-life products. Given that such a policy penetrates to the heart of product manufacturers’ world, it gives rise to much controversy. Directive 2000/53/EC lays down measures which aim, as a first priority, at the prevention of waste from vehicles and, in addition, at the reuse, recycling and other forms of recovery of end-of-life vehicles and their components so as to reduce the disposal of waste, enhancing environmental performance of all of the economic operators involved in the life cycle of vehicles and especially the operators directly involved in the treatment of EELV. Directive 2000/53/EC’s objectives are, as a first priority, the prevention of waste electrical and electronic equipment (WEEE), and in addition, the reuse, recycling and other forms of recovery of such wastes so as to reduce the disposal of waste. It also seeks to improve the environmental performance of all operators involved in the life cycle of electrical and electronic equipment, e.g. producers, distributors and consumers and in particular those operators directly involved in the treatment of waste electrical and electronic equipment. All three directives lay down collection, recovery and recycling targets. In order to achieve these targets, there is a take-back obligation. It follows that producers are responsible for taking back and recycling packaging, EELV and WEEE, although nothing prevents them from relying on organizations of producers and distributors for compliance. Each producer is responsible for financing these treatment operations according to the quantities of products he has been placing on the market. Accordingly, consumers are authorized to return equipment or packaging free of charge. Collected waste must be brought to authorized treatment facilities and treated according to the best available techniques. Furthermore, prevention of hazardous waste is also the objective of the Packaging Directive, the ELV Directive and Directives 2002/95 of 27 January 2003 on the restriction of the use of various heavy metals prohibits various metals (lead, mercury, cadmium, etc) from packaging, EELV and WEEE. Needless to say, the approach endorsed by the EC lawmaker towards prevention and recycling of product-related waste has major implications for the design, composition and distribution of products.39 These obligations provide, as a result, incentives to design products in an environmentally more efficient way, which takes waste management aspects fully into account. Indeed, the possibility to improve the recovery or the recycling of end-of-life products depends on their design. 40 As a result, this regulatory trend has extended the concept of sustainable development into the waste management realm. 39

Rehbinder (1999) 367.

40

Onida (2005) 260.

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Having said that, it is a regulatory approach that could hinder the functioning of the internal market. In having to meet recycling targets, private undertakings will need to cooperate throughout the whole waste management cycle (transport, sorting, recovery operations, etc.). 41 In other words, packaging must be treated from cradle (placing on the market) to grave (transformation into secondary raw materials). As a result, this holistic approach leads to further economic concentrations. For instance, whereas a wide number of companies were responsible for a wide array of operations until the 70s, fewer, but better equipped companies are occupying the field. In case of a take-back obligation, individual producers or importers are more likely to face hurdles establishing a comprehensive collection and recycling waste scheme. To be able to abide by their take-back obligations, they will have to rely upon broader waste management schemes that could abuse their dominant position. This obstacle to free trade and indeed to free competition has been highlighted in recent judgments handed down by both the Court of First Instance (CFI) and the ECJ. As to abuse of dominant position (Article 82 EC), the CFI upheld a European Commission decision condemning Duales System Deutschland’s abuse of its dominant position on the account a distortion of competition which might arise if an undertaking marketing packaging and paying a fee to DSD (and as a result bearing the Der Grüne Punkt logo) were charged twice as a consequence of participating in the DSD system and the system of another service provider. 42 With regard to agreements, decisions and concerted practices restricting or distorting competition (Article 81(1) EC), the CFI upheld a European Commission’s decision condemning Duales System Deutschland’s contractual relations with collection undertakings on the account that the exclusivity clause in favour of the collection undertaking, which is inserted into all service agreements concluded between DSD and its contractual partners, is to prevent other collection undertakings from offering their services to DSD. 43 With respect to free movement of goods, the ECJ held in Case C 463/01, Commission c. Germany, 44 that, by enacting a Regulation on the Avoidance and Recovery of Packaging Waste, a system seeking the re-use of packaging for products such as mineral waters which, under Directive 80/777/EEC of 15 July 1980 on the exploitation and marketing of natural mineral waters, must be bottled at source, Germany has been jeopardizing the free movement of bottles. In particular, Germany failed to fulfil its obligations under Directive 94/62/EC 41

In addition, given the logistics at stake, the collection of household waste, usually the responsibility of local authorities, has been partly handed over to private schemes.

42 43

CFI, case T-151/01, Der Grüne Punkt, judgment of 24 May 2007.

CFI, case T 289/01, Der Grüne Punkt, judgment of 24 May 2007.

44

Case C-463/01 Commission v. Germany [2004] ECR I-11705. E.g. C. True, “The German Drinks Can Deposit: Complete Harmonisation or a Trade Barrier Justified by Environmental Protection?”, JEEPL, 2005, no 2, pp. 142-150; N. Bringmann, note d’observation sous l’affaire C-463/01, R.A.E. – L.E.A., 2003-2004/4, p. 694-704.

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of 20 December 1994 on packaging and packaging waste which in conjunction with Article 28 EC prohibits measures having equivalent effect to a quantitative restriction. If follows that both public authorities and undertakings responsible on behalf of their members for comprehensive collection and recycling waste scheme should heed the economic provisions of the EC Treaty. In our view, the implementation of these economic obligations does not jeopardize a more sustainable economy. To the contrary, a more competitive waste management sector operating within the internal market would be better off to achieve bolder environmental objectives laid down by the EC lawmaker. Finally, the following table illustrates the ways in which recycling targets for a specific waste stream could impinge upon the conception and the design of products. CONCEPTION/DESIGN OF THE PRODUCT

Production - Environmental impacts (air, water, natural resources) - Energy consumption - Residues

Use - Environmental impacts (noise, air and water pollution, …) - Energy consumption



Traditional Waste Management Scheme: Discarding End-of-life Products

New Producer Responsibility Scheme: Recovery and Recycling Targets

- Disposal Operations - Recovery Operations (production of secondary raw materials or heath/electricity)

- Impact on the waste recycled streams - Impact on the design of the product - Improvement of the quality of the product (ban on hazardous substances)

11 Conclusion

To sum up, one is driven to the conclusion that the traditional end-of-the-pipe approach has been a failure, given that the amount of waste produced in the EC is still increasing. Although EC waste law has been recently evolving towards a more holistic approach (from cradle to grave), this new

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regulatory venue has been strewn with pitfalls. The few waste streams directives laying down a general producer responsibility have been the result of protracted negotiations and retain the power to ignite full-blown controversy. To make matters worse, the EC institutions appear to be unwilling to continue this process. In a number of new soft law documents, the EC Commission has been issuing new orientations focusing more on the use of materials than the management of waste streams. In fact, there is no intention so far to flesh out these ideas into more concrete harmonisation regimes. As a result, EC waste management law falls short of stopping unsustainable production and consumption trends. However, a new generation of producer responsibility directives could herald a more sustainable society. This requires some political vision, to say the least.

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Bibliography De Sadeleer and Wemaëre (2007) N. de Sadeleer and M. Wemaëre, “Valorisation et élimination des déchets: une distinction à clarifier”, Revue du Droit de l’Union Européenne, 2/2007, pp. 329-366.

De Sadeleer (2006) N. de Sadeleer, “The Concept of Waste”, in Environmental law and policy at the turn to the 21st century – Umweltrecht und -politik an der Wende zum 21. Jahrhundert – Gedenkschrift / Liber amicorum Betty Gebers, (Berlin, Lexxion, 2006) pp. 243-266.

De Sadeleer (2005a) N. de Sadeleer, “Waste, Products and By-products”, Journal of European Environmental & Planning Law, 2005, vol. 1, n° 4, pp. 46-58

De Sadeleer (2005b) N. de Sadeleer, “EC Waste Law or How to Juggle with Legal Concepts. Drawing the Line beween Waste, Residues, Secondary Materials, By-products, Disposal and Recovery Operations”, Journal of European Environmental & Planning Law, 2005, vol. 2, n° 6, pp. 46-58

De Sadeleer (1995) N. de Sadeleer, Le droit communautaire et les déchets (Brussels, Paris, Bruylant and Librairie Générale de droit et de jurisprudence, 1995)

Krämer (2007) L. Krämer, EC Environmental Law, (Sixth edition, Thomson, Sweet & Maxwell, 2007)

Krämer (2003) L. Krämer, “The Distinction between Product and Waste in Community Law”, (2003) 2(1) Environmental Liability 3-14

Onida (2005) M. Onida, “Products and the Environment”, in R. Macrory (ed.), Reflections on 30 Years of EU Environmental Law. A High Level of Protection? (Groningen, Europa Law Publishing, 2005), 235-266.

Rehbinder (1999) E. Rehbinder, ‘Take-Back and Recovery Obligations in the Light of the Treaty’, Mélanges Charles-Alexandre Kiss (Paris, L’Harmattan, 1999), 367.

Smith II (1993) J.T. Smith II, “The Challenges of Environmentally Sound and Efficient Regulation of Waste – The Need for Enhanced International Understanding” (1993) Journal of Environmental Law p. 91.

Van Calster (2006) G. van Calster, Handbook of EU Waste Law (Richmond, Richmond Law & Tax 2006).

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Table of Cases ECJ Case Law • Case C-206/88 & C-207/88, Vessoso & Zanetti [1990] ECR I-1461. • Case C-422/92, Commission v Germany [1990] ECR I-1097. • Case C-304/94, C-330/94, C-342/94 & C-224/95 Tombesi [1997] ECR I-3561. • Case C-129/96 Inter-Environnement Wallonie [1997] ECR I-7411. • Case C-114/01 AvestaPolarit Chrome Oy [2003] ECR I-8725. • Case C-418/97 & C-419/97,ARCO Chemie [2000] ECR I-4475. • Case C-9/00 Palin Granit [2002] ECR I-3533. • Case C-444/00, Mayer Parry Recycling Ltd [2002] ECR I-6163. • Case C-463/01, Commission c. Germany [2004] ECR I-11705. • Case C-416/02, Commission v Spain [2005] ECR I-7487. • Case C-121/03, Commission v Spain [2005] ECR I-7569. • Case. C-1/03 Paul Van de Walle [2004] ECR I-7613.

CFI Case Law • Case T-151/01, Der Grüne Punkt, judgment of 24th May 2007. • Case T-289/01, Der Grüne Punkt, judgment of 24th May 2007.

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EC Legislation on Public Procurement and Sustainable Development Ari Ekroos

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1 Introduction

Public purchasing represents huge potential for sustainable development, because public authorities are major consumers in Europe. They spend 16 per cent of the EU’s gross domestic product (GDP), around 720,000,000,000 Euros annually. Even in Finland, which is a relatively small member state, public purchasing is annually around 14.1 billion Euros (14 per cent of GDP). Setting an example and influencing the market place, public authorities can make a big change. By promoting green procurement, public authorities can provide industry with real incentives for developing greener products and technologies. In some product, works and service sectors, the impact can be particularly significant. E.g. if public authorities across the EU demanded green electricity, this would save the equivalent of 60 million tonnes of CO2, or 18 per cent of the EU’s greenhouse gas reduction commitment under the Kyoto Protocol. The same saving could be achieved if public authorities opted for buildings of high environmental quality. If all public authorities across the EU were to require more energy-efficient computers, it could cause the whole market to move in that direction, resulting in savings of 830,000 tonnes of CO2. Efficient use of environmentally and socially sustainable public procurement should and could have many positive outcomes. Direct environmental benefits accrue from purchasing less environmentally harmful products and economic benefits from buying more durable products, using less energy or saving on waste disposal spending. Indirect effects come from environmentally friendly product development, providing an example for private sector and consumer to follow. Some terminology should possibly be explained. Green public procurement (GPP) means that authorities take the environment into account when procuring goods, services or works for all stages of a project including the life cycle of procured goods. In many cases environmental benefits can be demonstrated relatively easily. Although in order to really do the right thing, information is needed on, e.g., life cycles. LCs, life cycle assessments or cost models show the complex interaction between a product and the environment from cradle to grave. MIPS (Material Input Per Service Unit) assess product life cycle impacts. The total material input of a product system (development though manufacturing through delivery) should be measured per these units for effective results (most economically advantageous). In fact, everything that looks “green” at first glance, is not that green if examined for performance on these criteria. Lack of data makes evaluation difficult. We also need to understand that our knowledge of environmental impacts is improving fast, though the speed of change is a major challenge. Fortunately, life-cycle approaches often have economic benefits. The extra work and cost of life cycle assessments can be retrieved. Sustainable public procurement is an even wider concept than green public procurement. It pertains to the three pillars of sustainable development

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(economic, social, environmental sustainability). Sustainability of a product or service is much more difficult to estimate. Of course, spending is relatively easy to assess, though the greatest economies may not come from the cheapest goods or services. Environmental issues are not that easy when taking into account the reservation mentioned above. In today’s practice, social issues seem to be the most difficult ones. There is not that much solid ground for e.g. objective verification and quantitative benchmarking of effects and benefits that would allow for accurate and fair evaluation of tenders. The ethically labelled products can be presented as an example of socially sustainable procurement, which in this case covers the cost of sustainable production and an extra premium that is invested in social or economic development projects.



2 Studies on Green Public Procurement

Member states’ green public procurement practice has been evaluated in some recent studies. According to a 2006 study, seven countries (Austria, Denmark, Finland, Germany, Netherlands, Sweden and UK, socalled Green-7) are currently implementing more elements of environmentally friendly public procurement than the other 18 countries. This means that these seven countries consistently have more tenders with green criteria. It is also interesting that the study found only two very green member states, Sweden and Germany, with green specifications in just over 60 per cent of the analysed tender documents. The study also listed the main barriers to green public procurement, as perceived by public purchasers themselves. For instance, 44 per cent believed environmentally friendlier products were more expensive; 35 per cent believed there was insufficient knowledge about the environment and how to develop environmental criteria; there was a lack of management support (including money and time), of strategic focus and strong green public procurement policies in the organisation (33%). 25 per cent lacked the practical skills and information (e.g. handbooks, Internet proficiency), and the same number believed public procurement officers lacked training . It is noteworthy that legal matters did not make it to the top of the list. Another study explored interest in public procurement in an examination of tender documents in the Nordic countries (Denmark, Finland, Norway and *

 Ari Ekroos is Professor of Economic Law, Doctor of Laws at Helsinki University of Technology, Institute of Law, Finland. 

See more on GPP web-pages http://ec.europa.eu/environment/gpp/green_vs_sustainable.htm, 15.9.2007.

 

Bouwer, Jonk, Berman, Bersani, Lusser, Nappa, Nissinen, Parikka, Szuppinger and Viganò (2006)

Bouwer et. all (2006)., 12.



Parikka-Alhola, Nissinen and Ekroos (2006) p. 257-279.

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Sweden). The most important consideration was price and cost (51 per cent), followed by quality (37 per cent), delivery and contracts (7 per cent), environment (3.3 per cent) and social issues (1.7 per cent). The study was carried out in 2005, indicating a still not particularly significant role for sustainable development issues in purchasing procedures (only 5 per cent of the documents mentioned sustainable development), though attitudes and practice are becoming more aware of sustainability issues.



3 Policy Background and Conditions Related to Principles



3.1 New Environmental Policy – Product Approach

It seems evident that in order to tackle product-related environmental problems, there is a need for new tools; production-based control is not sufficient. Emission policy control cannot limit harmful effects of products, it only keeps the products’ emission levels within legal boundaries. Waste legislation has not had a major role in controlling products either. Product lifecycle (LC) is a relatively complex phenomenon, from the extraction of natural resources, design, manufacture, assembly, marketing, distribution, sale and use, disposal as waste. The integrated product policy (IPP) of the EU aims at finding a new approach for product related environmental problems. IPP communication insists on taking into account all life cycle stages m and lists a wide range of instruments, both compulsory and voluntary: economic instruments, substance bans, voluntary agreements, environmental labelling and product design guidelines. Public procurement is only one of the IPP tools. IPP communication encourages member states to draw up publicly available action plans for greening their public procurement. It would not be legally binding but should give political impetus to the process of implementing and raising awareness of greener public procurement. The Commission will draw up an action programme which brings together its objectives and actions for its own procurement. IPP communication toolbox also includes information measures for public authorities, a practical handbook for public authorities, a product group database (not exhaustive) “greening public procurement” website. Most of these first stage actions have been executed at Community level. Public procurement seems to be one of the fastest growing branches of IPP. There are several other policy level decisions, strategies, programmes and other papers that support public procurement as a means of promoting sustainable development. One of them is the Sixth Environmental Action Programme 

Communication from the Commission to the Council and the European Parliament, Integrated Product Policy, COM(2003) 302 final.



See also e.g. Malcom (2005)134-144, and specially related to public procurement: Lia and Geiser (2005) p. 705-715.

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(2001 and 2006). According to an Action Programme (2006), the Commission will take the lead in a regular EU-wide benchmarking of green public procurement performance. The 2010 target is to achieve an EU average level of green public procurement that is equal to the current levels in the best performing member states. Another policy paper should be mentioned. It is the Communication on Stimulating Technologies for Sustainable Development: an Environmental Technologies Action Plan (ETAP), in which public procurement is mentioned as an important vehicle for boosting the uptake of environmental technologies. Also the renewed EU Sustainable Development Strategy emphasises green public procurement. In this strategy EU member states agreed to work for the same 2010 target. The Commission and member states have also made a commitment to develop a structured process to share best practice and expertise on GPP, taking into account the potential to promote GPP at local and regional levels.10 Also at global level, interest for green and sustainable public procurement has grown. For instance UN, UNEP and OECD have developed policy frameworks for more environmentally friendly public purchasing.11 In general, public procurement is highly regulated in the EU and by national governments. There is no general obligation to use sustainable or green public procurement, although there is no prohibition against am environmentally friendly public procurement policy either. In most member states, green public procurement is left to governmental discretion, but many countries have ambitious plans to promote it while others at least support green public procurement.12 From a purely legal point of view, EU legislation seems relatively clear as a good framework for environmentally friendly public purchasing. From the environmental instruments point of view, green public procurement is market based and uses competition for environmental purposes, though it is mostly information based. There are relatively good possibilities of a win/ 

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the Mid-term Review of the Sixth Community Environment Action Programme, COM(2007) 225 final.



Communication from the Commission to the Council and the European Parliament – January 2004: Stimulating Technologies for Sustainable Development: An Environmental Technologies Action Plan for the European Union, COM(2004)38.



Communication from the Commission to the Council and the European Parliament, On the Review of the Sustainable Development Strategy A Platform for Action, COM(2005) 658 final.

10

Council of the European Union, Brussels, 9 June 2006, 10117/06, Review of the EU Sustainable Development Strategy (EU SDS) Renewed Strategy, 12.

11

See more on http://ec.europa.eu/environment/gpp/international_policy_framework_en.htm, 15.9.2007. See e.g. OECD, The Environmental Performance of Public Procurement, Issues of Policy Coherence, 2003.

12

See National GPP policies and guidelines, http://ec.europa.eu/environment/gpp/pdf/national_gpp_ strategies_en.pdf, 15.9.2007.

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win situation, which gives a “double good”. It means that economic and environmental goals can be achieved at the same time. Related to energy consuming devices, the price of the product is normally the same or very little higher; in terms of their life cycle, the less consuming devices are economically and environmentally profitable. Insulation and heat pumps are relatively clear cases of energy saving devices – expenditure is relatively quickly recouped as energy prices continue to rise.



3.2 Sustainability Goals and Competition Law Objectives

Green public procurement seeks to achieve sustainable development along with internal market objectives. They are both elemental for the European Community and therefore mentioned in the EC Treaty. According to article 2, the objectives of the Community are the common market and an economic and monetary union. By implementing common policies or activities referred to in articles 3 and 4, the Community seeks to promote a harmonious, balanced and sustainable development of economic activities, high level of protection and improvement of the quality of the environment. In order to achieve these objectives, the activities of the Community shall include e.g. the prohibition of customs duties and quantitative restrictions on the import and export of goods, and of all other measures having equivalent effect; and an internal market characterised by the abolition of obstacles to the free movement of goods, persons, services and capital. In addition, article 4 of the Treaty includes the principle of an open market economy with free competition. Now these objectives will frequently be at cross purposes with sustainability goals, though it should be pointed out that this is not essential and contradictions can be solved. The essential link between sustainable development, including environmental and other aspects, and an internal competitive market is provided in article 6 of the Treaty, according to which, environmental protection requirements must be integrated into the definition and implementation of the Community policies and activities referred to in article 3, in particular with a view to promoting sustainable development. Of course, there will be internal dissent and controversy. One of the clearest problems is the burden placed on the environment of long-distance transport, which of course is an aspect of a product’s life cycle and a necessary condition for the free movement of goods. European public procurement legislation itself is a good example of balancing the environment and market. The recital (2) of the directive expresses general principles related to the directive, which is given in respect of the principles of the Treaty and in particular to the principle of freedom of movement of goods, the principle of freedom of establishment and the principle of freedom to provide services and the principles deriving therefrom, such as the principle of equal treatment, the principle of non-discrimination, the principle of mutual recognition, the principle of proportionality and the principle of transparency.

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In addition, recital (6) of the directive refers to the integration principle. Accordingly, article 6 of the Treaty requires environmental protection measures to be integrated into the definition and implementation of the Community policies and activities referred to in article 3 of that Treaty, in particular with a view to promoting sustainable development. Therefore, the directive clarifies how the contracting authorities may contribute to the protection of the environment and the promotion of sustainable development, whilst ensuring the possibility of obtaining the best value for money for their contracts. Even in the jurisprudence of the European Court of Justice, the integration principle has now and then played a significant role. It can be said to be an important link between environmental sustainability and other objectives in practice, as well as in the abstract in terms of theory. In public procurement case ECJ: C-513/99, the Helsinki bus case, the integration principle was referred to in the reasoning.13 As a result of some of the cases, the principle can shift the balance in favour of the environment. Another important but very general legal principle related to public procurement is proportionality. It means that all requirements must be linked to the subject of the purchase. The Green Public Procurement Handbook14 issued by the Commission emphasizes the proportionality principle, because some of the cases it is not always clear when the requirement “is linked”, not least when the link is not well argued. It is vital that public authorities pay enough attention to proportionality, because issues are highly legal. Proportionality has also played important role in ECJ practice.15



4 Public Procurement Legislation in Force



4.1 ‘New’ Directives

The EU public procurement legislation was totally renewed in 2004. The two “new” directives are Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors and Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts. 13

See also ECJ: Case C-379/98 PreusenElectra [2001] ECR I-2099, on integration principle and Case C448/01 Wienstrom [2003] ECR I-14527 , in which integration principle was indirectly taken into account (via directive 2001/77/EC).

14 15

European Commission, Buying green! A handbook on environmental public procurement, 2004.

Case C-513/99 Helsinki Bus [2002] ECR I-7213 C-448/01 Wienstrrom [2003] ECR I-14527, and e.g. Case C-215/04 Pedersen [2006] ECR I-1465 and Case C-277/02 EU-Wood-trading [2004] ECR I-11957 and Case C-6/06 (not yet published in the ECR) , which are not public procurement cases.

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Both came into force 30 April 2004.16 I shall examine Directive 2004/18/EC in detail below, but the environmental content of both is relatively similar. The public procurement Directives 89/665/EEC and 92/13/EEC concerning procedures17 was not renewed. The purpose of the Directive 89/665/EEC is to ensure the effective application of Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, by making it obligatory for the member states to establish effective and rapid remedies in the event of infringements of these provisions.18 The most important environmental articles of Directive 2004/18/EC are 23 and 53. Article 23 includes provisions on technical specifications, such as what an eco-label is allowed say. Article 53 sets forth contract award criteria. There are two basic options: (1) lowest price only or (2) the most economically advantageous tender from the point of view of the contracting authority for the contracting authorities. When the second of these options is taken, the contracting authorities can take into account various award criteria linked to the subjectmatter of the public contract in question, including for example environmental characteristics (these being only one of several criteria). Article 50, which allows contracting authorities to require evidence of compliance by the economic operator with environmental management standards, should also be mentioned.



4.2 Jurisprudence and Some Other Relevant Documents

The new directives are in many ways based on the case-law of the European Court of Justice. From environmental point of view milestone ECJ cases are C-513/99, Helsinki Bus case (2002) and ECJ case C-448/01, Wienstrom case (2003). 16

The WTO Agreement on Government Procurement (GPA) that was signed in Marrakech on 15 April 1994 should also refered to. The GPA itself does not refer to environmental protection, although the sixth recital of the preamble to the WTO Agreement recognises the need to act in accordance with the principle of sustainable development and to protect and preserve the environment. Therefore, it is relatively broadly accepted that the GPA allows contracting entities to take into account environmental considerations when defining technical specifications (including process and production methods) and selecting award criteria, on condition that they are not discriminatory, and are sufficiently objective and verifiable.

17

Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts and Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors.

18

Directive 92/13/EEC seeks to guarantee the effective application of the provisions of Directive 2004/17/ EC coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors.

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In the mentioned Helsinki Bus case, the Court for the first time confirmed the possibility of taking into consideration environmental award criteria when assessing the most economically advantageous tender. The Court’s decision introduced conditions on the use of environmental criteria. One of the most important was that environmental requirements should be linked to the subjectmatter of the contract, and should not give unrestricted freedom of choice on the contracting authority. Environmental requirements such as emissions and noise limits of buses were applicable, though the purchaser did not profit from them in monetary terms. Environmental requirements should also be specific and objectively quantifiable, as are emissions and noise. The Court also emphasised that environmental, like other requirements have to comply with the general principles of the EC. The interesting thing in this decision is that the Court referred to article 6 of the Treaty. In the Wienstrom case, the bidders had undertaken, according to the tender documents, to supply electricity stemming from renewable energy sources. They therefore had to prove they had supplied or would supply a minimum amount of electricity per year from renewable energy sources equivalent to the estimated annual consumption of the federal services. Most importantly, the court found it was acceptable to make use of ecological award criteria, even if they did not provide an immediate economic benefit to the contracting authority. The Court also decided that it was clearly admissible to establish an award criterion that was related to the production method of the purchased product, if this was relevant for the product. The Interpretative Communication of the Commission19 summarised the situation related to environmental matters in public procurement in 2001. The Communication was at the time welcomed and managed to create some practical rules, though now – after the new directives – its relevance is limited. Many of the positions taken in this Communication were introduced in new the directives. The European Eco-labelling Board published guidelines on eco-labelling criteria in public procurement.20 The guidebook included practical advice on how to simplify green procurement by using eco-labelling criteria. The new directives have now special provisions on these issues.



4.3 Environmental Matters – General

Directive recitals include several references to environmental issues. According to recital 1 of the Directive 2004/18/EC, it is based on Court of Justice case-law, in particular case-law on award criteria which clarifies the possibilities for the contracting authorities to meet the needs of the public con19

Commission Interpretative Communication on the Community law applicable to public procurement and the possibilities for integrating environmental considerations into public procurement, COM(2001) 274 final.

20

Guidelines on Greening Public Procurement by Using the European Eco-label Criteria, November 2001.

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cerned, including in the environmental and/or social area, provided that such criteria are linked to the subject-matter of the contract, do not confer an unrestricted freedom of choice on the contracting authority, are expressly mentioned and comply with the fundamental principles mentioned in Recital 2. There is also a reference to article 6 of the Treaty (recital 5). The directive therefore clarifies how the contracting authorities may contribute to the protection of the environment and the promotion of sustainable development, whilst ensuring the possibility of obtaining the best value for money for their contracts. Furthermore, according to recital 27, contracting authorities that wish to define environmental requirements for the technical specifications of a given contract may lay down the environmental characteristics, such as a given production method, and/or specific environmental effects of product groups or services. They can, but are not obliged to, use appropriate specifications that are defined in eco-labels, such as the European Eco-label, (multi-)national eco-labels or any other eco-label which meets the requirement set in article 23 of the directive. Non-discrimination is one of the most important principles of contract performance conditions (recital 31). Contract performance conditions, which should be indicated in the contract notice or in the contract documents, shall not be directly or indirectly discriminatory, but they may, in particular, be intended to favour e.g. the protection of the environment. Environmental management measures or schemes may be required according to recital 42 in appropriate cases, in which the nature of the works and/or services justifies applying them during the performance of a public contract. Environmental management schemes can demonstrate that the economic operator has the technical capability to perform the contract. Moreover, a description of the measures implemented by the economic operator to ensure the same level of environmental protection should be accepted as an alternative to environmental management registration schemes as a form of evidence. Recital 44 emphasises equal treatment and objectivity. Accordingly, if these conditions are fulfilled, economic and qualitative criteria for the award of the contract, such as meeting environmental requirements, may enable the contracting authority to meet the needs of the public concerned, as expressed in the specifications of the contract.



4.4 Environmental Requirements in Technical Specifications and other Requirements

Technical specifications can play an important environmental part as well, though they naturally in most of the cases extend further than environmental requirements of course. Similarly, technical specifications are the general requirements of the tenderer. Both can be compulsory so that if requirements are not met, the bidder is out of competition procedure and when requirements are set, the authority has little possibility to change them while the procedure is ongoing. 433

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According to article 23, technical specifications shall be set out in the contract documentation, such as contract notices, contract documents or additional documents. They are defined more in detailed under point 1 of Annex VI of the directive. Here, a technical specification means the totality of the technical prescriptions contained in particular in the tender documents, defining the characteristics required of a material, product or supply, which permits a material, a product or a supply to be described in a manner such that it fulfils the use for which it is intended by the contracting authority. Technical specifications shall afford equal access for tenderers and should not have the effect of creating unjustified obstacles to the opening of public procurement to competition. Technical specifications may also include environmental characteristics (article 23(3.b). However, such parameters must be sufficiently precise to allow tenderers to determine the subject-matter of the contract and to allow contracting authorities to award the contract. According to article 23(6), where contracting authorities lay down environmental characteristics in terms of performance or functional requirements, as referred to in paragraph 3(b), they may use the detailed specifications, or, if necessary, parts thereof, as defined by European or (multi-) national eco-labels, or by another eco-label.21 Other eco-labels should be such as that specifications are appropriate to define the characteristics of the supplies or services that are the object of the contract, the requirements for the label are drawn up on the basis of scientific information, the eco-labels are adopted using a procedure in which all stakeholders, such as government bodies, consumers, manufacturers, distributors and environmental organisations can participate, and they are accessible to all interested parties. The contracting authorities may indicate that the products and services bearing the eco-label are presumed to comply with the technical specifications laid down in the contract documents; they must accept any other appropriate means of proof, such as a technical dossier of the manufacturer or a test report from a recognised body. Article 26 clarifies article 23 concerning technical specifications. According to its general rule in the first the sentence, contracting authorities may lay down special conditions relating to the performance of a contract, provided that these are compatible with Community law and are indicated in the contract notice or in the specifications. The second sentence clearly opens a possibility for special conditions concerning environmental issues, which is an example named in the article 26. The contracting authority may also, according to article 27, state in the contract documents, the body or bodies from which a candidate or tenderer may obtain the appropriate information on the obligations relating e.g. to environmental protection, which are in force in the member state, region or locality in which the works are to be carried out or services are to be provided and which 21

See also GPP handbook (European Commission, Buying green! A handbook on environmental public procurement, 2004), 17.

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shall be applicable to the works carried out on site or to the services provided during the performance of the contract. Furthermore according to article 50, contracting authorities should require the production of certificates drawn up by independent bodies attesting the compliance of the economic operator with certain environmental management standards. These certificates can be required in cases referred to in article 48(2)(f). Article 48 includes provisions on technical and/or professional ability and according to 48(2)(f) evidence of the economic operator’s technical abilities may be furnished by e.g. an indication of the environmental management measures that the economic operator will be able to apply when performing the contract. Article 50 accepts EMAS and environmental management standards based on the relevant European or international standards certified by bodies conforming to Community law or the relevant European or international standards concerning certification (in practice this normally means ISO 14001), but also other evidence of equivalent environmental management measures from economic operators should be accepted.



4.5 Contract Award Criteria

Public authorities can in contract award criteria proportion different requirements of the product or service if it is needed in order to get best possible purchase. Article 53 includes basic rules on contract award criteria with two fundamental possibilities: (1) lowest price only or (2) most economically advantageous tender from the point of view of the contracting authority for the contracting authorities, may include criteria justified by linked to the subject of the public contract in question. At first it should be noticed that the relatively open expression “linked” seems to play an important role in practice. In some cases, this linking needs at least some kind of argumentation related to requirements and their importance from environmental point of view. Generally, it can be said that if a purchaser wishes to set deep and detailed environmental issues in contract award criteria, these requirements may need also more precise argumentation. Public purchaser must choose whether to use lowest price or most economically advantageous as a contract award criterion. If lowest price is used, it will be the only criterion and other criteria cannot be used, although technical and other criteria should be defined, but any kind of “points system” or “preference list” is excluded if lowest price is in use. If most economically advantageous criterion is chosen, the purchaser may apply numerous criteria combined with price factor. According to article 53 of the directive for example, quality, price, technical merit, aesthetic and functional characteristics, environmental characteristics22, running costs, cost-effectiveness, after-sales service and technical 22

Interestingly, the Finnish language version of the directive translates environmental characteristics as “ympäristöystävällisyys”, which could be translated “environmental friendliness”, whereas environmen-

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assistance, delivery date and delivery period or period of completion can be used as an award criteria. It should be noted that the list given in the directive is not exhaustive, and other criteria can be used. If a public purchaser uses “the most economically advantageous” as the contract award criterion, the contracting authority shall specify in the contract notice or in the contract documents or, in the case of a competitive dialogue, in the descriptive document, the relative weighting which it gives to each of the criteria chosen to determine the most economically advantageous tender (article 53(2)). Weighting can be expressed by providing for a range with an appropriate maximum spread. In many cases the authority prepares some kind of numbered list of requirements with their weight in numbers (very often called points), which are related to importance to product or service. After getting tenders authority compares tenders with this list and tenderer whose total amount of “points” is highest will get the contract. Where weighting is not possible for demonstrable reasons, the contracting authority shall indicate the criteria in descending order of importance.23 Contract award criteria are relatively open for many kinds of environmental requirements and many kinds of valuation criteria, and as such to positive developments. Nor are there many specific legal obstacles, though naturally general legal requirements also concern environmentally friendly purchasing. Depending on the purchase object, environmental criteria may play various roles. For instance, environmental criteria may be very different if the object is a product or a service. In some of the products and services environmental performance can be highly important, even the most important criterion. There are certainly also products and services where environmental matters do not play a role at all, or there are no criteria, because all of the products are so alike. Naturally in most of the cases environmental criteria, at least for the moment, are not the only or the most important criteria. Nevertheless, environmental issues can play a very important role and thus promote sustainable development. European countries are quite advanced. Some have enacted general requirements and others even advanced requirements for certain product groups. But Europe has a long way to go in the sustainable public purchasing area; progress takes time, knowledge and policy decisions. Current legislation needs improving in this sector if we are to achieve a sustainable society. National legislations vary in detail, although directives do not leave much space for national peculiarities. In terms of policymaking, governments are freer and can implement much more advanced policies. One of the examples of a national modification or amendment is section 2 of the ”Public Procurement Act” of Finland24 which came in to force June 1, 2007. tal characteristics could also be translated to Finnish as “ympäristönsuojelulliset ominaisuudet”. 23

See more detailed use of award criteria GPP handbook, 32-37.

24

Laki julkisista hankinnoista (348/2007). Same kind of provision has also been included in “Public Procurement Act for Water, Energy, Transport and Postal Services Sectors”, Laki vesi- ja energiahuollon,

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It requires authorities to organise their public procurement so that purchases can be carried out as economically and systematically as possible and in appropriate completeness, taken into account environmental aspects. This section, named “principles that should be taken into account in public procurement”, is not binding, but “principled provision”, meant as a guide for the authorities. Indeed, it seems to be the only “progressive” provision in the Public Procurement Act of Finland. The Act in all other respects follows the directive.25



5 Development Tasks and Challenges

Public authorities do not very often include special security clauses in contracts related to environmental requirements.26 This is understandable as environmental requirements represent only a relatively small part of a contract. The more special the environmental requirements, the more important to include a specific contract clause related to them. In general, member states should attempt to ensure that contract clauses are more environmental and sustainable, because it seems that at the moment most of the contracts are relatively loose. Environmental matters should be expressed clearly in contracts, especially if required by the award criteria.27 And at least the simple sanction clauses should be amended to address environmental concerns. Public authorities also need guidance and practical help to ease the use of environmental criteria. The development of general contract clauses and various kinds of framework contracts, suggest themselves. They could include clauses needed from an environmental point of view. And if public procurement were to include sustainable development issues more widely, contract clauses would obviously need to change with greater urgency. There are two more very interesting issues that are open for interpretation and therefore need to be clarified or resolved, namely product award criteria related to production process, and transportation issues related to product or service life cycle. These matters have not, at least not yet, caused problems for liikenteen ja postipalvelujen alalla toimivien yksiköiden hankinnoista (349/2007). 25

In the legislative process in the parliament, the environment committee proposed in its statement to the economic committee, the draft to be modified (YmVL 29/2006 p. 4) as follows: section 2, 1 should be modified so as to more strongly direct to take environmental aspects into account. The committee suggested this to be done by deleting at the end of sub item 2 “taking into account environmental aspects” whilst adding a new sentence “In public procurements environmental aspects must always be taken into account when possible”. The committee argued that modified as it proposed the section would guide more effectively to include environmental aspects into procurements.

26

According to ongoing research work done at Institute of Law and Finnish Environmental Centre, see also Antti Palmujoki, Ympäristönäkökohtien huomioiminen julkisissa hankinnoissa, Edilex 15/2007, www.edilex.fi/lakikirjasto/4426.

27

See also GPP handbook, 38-39.

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public authorities, but they may prove difficult to avoid completely if one seeks to achieve maximum environmental benefits. In most of cases, environmental requirements are clearly linked to the product itself, its performance or disposal. In some cases distinctiveness of products according to their environmental characteristics will not be possible without criteria that go into production process as well. One of the examples is paper products, which contain many invisible but potentially harmful environmental substances.28 The guidance related to the directive allows for technical specifications on production processes.29 There have been reservations to whether it would be possible to set production process related requirements in contract award criteria. The question is whether these requirements are directly linked to the product. This question is still relevant though already in the Wienstrom case (ECJ: C-448/01) the court stated that it was allowed to establish an award criterion which is related to the production method of the purchased product When approaching this issue from general principles the answer can be positive. Production process related environmental requirement are possible.30 But they need to pass a “general principles test”, which means that tenderers get equal treatment, purchasing process is non-discriminative and transparent, and requirements are proportional. In purchasing e.g. bulky products or large quantities environmental effects of transportation can be very serious, accounting for a large slice of the product’s life cycle. In other words, the closer the products are manufactured to purchaser, the less the harm to the environment. According to Interpretative Communication of the Commission, the general rule is that contracting entities should not impose conditions causing direct or indirect discrimination against potential tenderers in other member states even in purchasing which is not in the scope of the directives, such as the requirement that undertakings interested in the contract must be established in the same member state or region as the contracting entity.31 But the Interpretative Communication on the Community (2001)32 was already negative towards so-called external costs. The idea was 28

See e.g. eco-labelling requirements of the paper products, http://ec.europa.eu/environment/ecolabel/ product/pg_tissuepaper_en.htm, 15.9.2007.

29

See GPP handbook, 23-24. There are examples given in GPP handbooks, such as electricity produced from renewable energy sources, food from organic agriculture and sustainable and legally logged timber.

30

Ekroos – Nissinen Voidaanko tuotantomenetelmää koskevia ympäristönsuojelullisia perusteita käyttää julkisten hankintojen vertailuperusteina? Edilex 2007, 131, 2.11.2007, www.edilex.fi.

31

Commission Interpretative Communication on the Community law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directives, 2006/C 179/02, page 6. See also GPP handbook, 39, where distance related clauses in contracts are seen discriminatory.

32

Commission Interpretative Communication on the Community law applicable to public procurement and the possibilities for integrating environmental considerations into public procurement, COM(2001) 274 final.

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that the costs of use and disposal of the product are costs of the purchaser and the costs that are not borne by the contracting authority cannot be taken into consideration. This transport-related life cycle issue seems to be unsolved – or would it be possible to consider linking this kind of environmental characteristics to the product itself? On principle grounds, freedom of movement of goods and sustainable development are at odds. It is also uncertain whether it would be possible to solve this kind of a problem with the above-mentioned “general principles test”. A definitive solution might come about through modifications of the directive, but it is unclear whether member states are eager to go down that route.



6 Final Remarks

Public procurement legislation seems to be relatively environmentally friendly, although there is room for progress. The “new” legislation – EU directives and the legislation implementing them in the member states – is much better than before and the problems that existed then are now mostly solved. Generally speaking, governments may even be prepared to enact environmentally very advanced public procurement procedures. There is an urgent need for policymaking to address how best to account for environmental needs in public purchasing. It seems that the Commission has noticed this need and is pushing for action and policy decisions, e.g. through the integrated product policy and sixth environmental action programme. In many member states there is also lots of good work being done in this sector.33 Because public purchasing forms such a large part of GDP in Europe, ambitious political decisions are still needed to really make the difference and promote sustainable development. For instance in mitigating climate change, public purchasing has a large untapped potential to make a real difference. Although the Commission has been active, and governments have devised national action plans , greening is a challenging task and takes time. It seems that greening purchasing of local municipalities is the most challenging though there are major differences between public administrations in Europe. In many member states, local municipalities are relatively independent, with many and varied responsibilities, and never the resources to execute them. They would certainly not have the resources to implement the ambitious plans governments have been endorsing. It would be easier to change purchasing culture of central government and the Commission. There are of course possibilities for further progress in generating legislation related to sustainable or green public procurement. Enforcing compulsory 33

See also Commission www-pages, http://ec.europa.eu/environment/gpp/national_gpp_strategies_ en.htm, 15.9.2007 and e.g. National Action Plan including targets of Sweden (8.3.2007), http://www. miljo.regeringen.se/sb/d/8827/a/78711, 15.9.2007.

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green public procurement would be the most radical step. There might also be possibilities for compulsory environmental public purchasing in some key areas. Could the energy sector and energy-consuming commodities be one of these key areas? Of course, it is relatively easy to recommend compulsory public purchasing, but in practice it is not in every case very clear which product would be the most environmentally friendly. Compulsory green public procurement would also certainly have its own set of legal problems, though they could be solved and some of them even avoided if the legislation was prepared carefully. One of the issues that should be considered carefully is global trade and the Agreement on Government Procurement. Global trade development is a challenge for sustainable public procurement, which could also much more carefully take into account social issues that are often more relative in nature than environmental matters, which can in many cases be based on natural scientific basis. There are a few countries that are also taking their first steps towards socially sustainable public procurement.34 Public purchasing can certainly play a significant role in achieving those long-term targets of sustainable development, which seem to be somewhere in the distance although we are certainly moving towards them.

34

E.g. the Norwegian Action Plan 2007 – 2010 (Environmental and Social Responsibility in Public Procurement (Sustainable Public Procurement), The Norwegian Action Plan 2007 – 2010, Norwegian Ministry of the Environment, Norwegian Ministry of Children and Equality and Norwegian Ministry of Government Administration and Reform, 06/2007, http://www.regjeringen.no/en/dep/fad/Documents/Reports-and-plans/Plans/2007/Environmental-and-Social-Responsibility-.html?id=476600, 16.10.2007).

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Bibliography Bouwer, Jonk, Berman, Bersani, Lusser, Nappa, Nissinen, Parikka, Szuppinger P and Viganò (2006) Bouwer M, Jonk M, Berman T, Bersani R, Lusser H, Nappa V, Nissinen A, Parikka K, Szuppinger P and Viganò C, 2006. Green Public Procurement in Europe 2006 – Conclusions and recommendations. Virage Milieu & Management bv, Korte Spaarne 31, 2011 AJ Haarlem, the Netherlands. http://europa.eu.int/comm/environment/gpp, 15.9.2007.

Ekroos; Nissinen (2007) Ekroos, Ari, Nissinen, Ari, Voidaanko tuotantomenetelmää koskevia ympäristönsuojelullisia perusteita käyttää julkisten hankintojen vertailuperusteina? Edilex 2007, 131, 2.11.2007, www.edilex.fi.

Lia and Geiser (2005) Lin Lia and Ken Geiser, Environmentally responsible public procurement (ERPP) and its implications for integrated product policy (IPP), Journal of Cleaner Production 13 (2005), 705-715.

Malcom (2005) Rosalind Malcom, Integrated Product Policy – a New Regulation Paradigm for a Consumer Society?, EELR May 2005, 134-144.

Palmujoki (2007) Antti Palmujoki, Ympäristönäkökohtien huomioiminen julkisissa hankinnoissa, Edilex 15/2007, www.edilex.fi/lakikirjasto/4426.

Parikka-Alhola, Nissinen and Ekroos (2006) Parikka-Alhola, Katriina., Nissinen, Ari and Ekroos, Ari, Green award criteria in the most economically advantageous tender in public purchasing, In Advancing public procurement, Ed. K.V. Thai and G. Piga, 2006, 257-279.

Other Documents • Environmental and Social Responsibility in Public Procurement (Sustainable Public Procurement), The Norwegian Action Plan 2007 – 2010, Norwegian Ministry of the Environment, Norwegian Ministry of Children and Equality and Norwegian Ministry of Government Administration and Reform, 06/2007, http://www.regjeringen.no/en/dep/fad/Documents/Reportsand-plans/Plans/2007/Environmental-and-Social-Responsibility.html?id=476600, 16.10.2007. • European Commission, Buying green! A handbook on environmental public procurement, 2004 (GPP handbook). • Commission Interpretative Communication on the Community law applicable to public procurement and the possibilities for integrating environmental considerations into public procurement, COM(2001) 274 final.

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• Commission Interpretative Communication on the Community law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directives, 2006/C 179/0. • Communication from the Commission to the Council and the European Parliamant, Integrated Product Policy, COM(2003) 302 final. • Communication from the Commission to the Council and the European Parliament – January 2004. • Stimulating Technologies for Sustainable Development: An Environmental Technologies Action Plan for the European Union, COM(2004)38. • Communication from the Commission to the Council and the European Parliamant, the Council, the European Economic and Social Council and the Committee of the Regions on the Mid-term review of the Sixth Community Environment Action Programme, COM(2007) 225 final. • Guidelines on Greening Public Procurement by Using the European Eco-label Criteria, November 2001. • OECD, The Environmental Performance of Public Procurement, Issues of Policy Coherence, 2003.

Table of Cases • Case C-379/98 PreussenElectra [2001] ECR I-2099. • Case C-513/99 Helsinki Bus [2002] ECR I-7213. • Case C-448/01 Wienstrom [2003] ECR I-14527. • Case C-215/04 Pedersen [2006] ECR I-1465. • Case C-277/02 EU-Wood-trading [2004] ECR I-11957. • Case C-6/06 (not yet published in the ECR).

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Bioenergy as Integration of the Sustainable Development Principle in Energy Policy The Particular Case of EC Biomass Regulation Catherine Banet

chapter 4.4



bioenergy as integration of the sustainable development principle in energy policy

1 Introduction

The idea of sustainable energy is an effect of integrating the principle of sustainable development into energy law. Sustainable energy is energy that is sustainably generated, refined and consumed and is at least twofold. If sustainable energy consumption focuses more on energy efficiency, sustainable energy production will look to renewable energy sources for energy, which is the topic of this paper. The concept of sustainable energy already appeared in the 1987 Report of the World Commission on Environment and Development – Our Common Future – chaired by Gro Harlem Brundtland (hereafter ‘Brundtland Report’). It is associated with the notion of safety, dependability and protection of the environment, the Commission seeing the latter as closely interlinked to the concept of sustainability for the energy future. In order to define ‘the patterns’ of future energy use, the report builds on the concept of sustainable development. It identifies some key elements of sustainability that have to be integrated within energy policy, namely: - sufficient growth of energy supplies to meet human needs; - energy efficiency and conservation measures, such that waste of primary resources is minimised; - public health, recognising the problems of risks to safety inherent in energy sources; and - protection of the biosphere and prevention of more localised forms of pollution. The link is here made in the report between sustainable development and energy policy, by the integration of economic, social and environmental concerns into the energy sector. Twenty years later, an assessment can be done of the implementation of sustainable development as a guiding principle of action, and its legal achievements so far. The European Union (EU) is here taken as study example because of the comprehensive legal framework that it has developed since 1997, supported by the adoption of a Sustainable Development Strategy at the 2001 Gothenburg Summit, as completed and revised afterwards.



1.1 Integrating Sustainable Development into Energy Policy: Goals And EC Legal Achievements

One of the best illustrations of the integration of environmental concerns into energy policy for sustainable development purposes is found in *

 Catherine Banet (LL.M, MA) is PhD research fellow at the University of Oslo, Faculty of Law, Scandinavian Institute for Maritime Law, Petroleum and Energy Law Department, Norway. 

Brundtland Report (1987), Chapter 7.1 – Energy: Choices for Environment and Development.

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primary and secondary legislation of the European Community (EC). One of the objectives of the EU is ‘to promote economic and social progress and a high level of employment and to achieve balanced and sustainable development.’ In addition, Article 6 of the EC Treaty makes mandatory the integration of environmental protection into the definition and implementation of EC policies in order to promote sustainable development. Article 2 of the EU Treaty and articles 2 and 6 of the EC Treaty enable policy makers to integrate environmental concerns in energy policymaking. To this end, the European Community has developed a comprehensive framework for the promotion of the use of renewable energy sources. The action of the European Union takes place in the general redefinition of the EU energy policy, including the March 2006 Green Paper on Competitiveness, Sustainability and Security of Supply, and the Energy Package published by the European Commission in January 2007, Energy for a Changing World. The first concrete European Community objective was formulated in the 1998 White Paper on Renewable Energy Sources,  with an indicative target of 12 per cent of gross energy consumption originating from renewables to be achieved by 2010. The second Community’s 2010 indicative target for electricity produced from renewable energy as a proportion of per cent of total Community electricity consumption is 21 per cent, as defined in Directive 2001/77/EC. As current production of renewable energy sources (RES) looks likely to miss the mark for both of these targets, the European Commission proposed in the Road Map published in January 2007 that the EU establishes a mandatory target of  

Article 2 of the EU Treaty.

Under the current shape of the EC Treaty, there is no special Chapter on energy. But there is a policy in matters of energy (see website of the Directorate General for Energy and Transport: http://ec.europa. eu/energy) and, as energy is considered a good by case law, it is subject to internal market provisions. See Roggenkamp, Redgwell, del Guayo and Rønne (2007), Chapter 5.



Communication from the European Commission, Energy for the Future: Renewable Sources of Energy, White Paper for a Community Strategy and Action Plan, COM(97) 599 final, Brussels, 26.11.1997. The White Paper was endorsed by the Council in its resolution of 8 June 1998 on renewable sources of energy, and by the European Parliament in its resolution on the White Paper.



As formulated in Article 3.4 of Directive 2001/77/EC on the promotion of electricity produced from renewable energy sources, which has also set differentiated targets for each Member State. The Annex to the directive gives the break down of the Community target between Member States. After the 2004 enlargement of the EU, the Community objective has been revised from 22,1 to 21 per cent currently.



The share of renewable energies in the primary energy consumption of the EU countries as a whole is estimated at 6.92 per cent in 2006. This already represents an increase by 7.5 per cent with respect to 2005. In terms of sectoral repartition, the main sectors having contributed to the progress made in 2006 are: solid biomass (+3.3 Mtoe); biofuels (+2.6), wind power (+1 Mtoe) and biogas (+0.6 Mtoe). However, this is far from filling the gap before the 2010 target. Estimations are of 10 per cent increase by the end of 2010, at the best. Renewable energy production also increased between 2005 and 2006, by 5.8 per cent. Consequently,

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20 per cent share of RES in the energy consumption by 2020. This mandatory target has been endorsed by the Heads of State and Government during the 2007 Spring Council, i.e. the reduction of greenhouse gas emissions by 20% at least by 2020 and development of renewable energy sources with a target of 20% in energy production. The current discussions focus on the manner how to design and coordinate the proper supporting instruments for attaining those goals and to break down the Community objective in differentiated national targets as part of a revised directive on the promotion of the use of energy from renewable sources. Concrete proposals in that matter have been presented by the European Commission in a comprehensive Energy and Climate Package on 23 January 2008. Within the Package, the issue of the regulation of biomass production is addressed in details in the proposal for a new directive on the promotion of the use of energy from renewable sources.



1.2 Biomass Regulation Challenges

Of the renewable energy sources, biomass is the most significant. In addition to its environmental advantages in terms of reduction of greenhouse gases (GHG) emissions, biomass increases the security of energy supply by diversifying the sources of energy, and making them available at local, regional, national and European levels.  For that purpose, biomass is thought to play a central role in the current EC sustainable energy policy. The European Commission consequently released in 2005 a Biomass Action Plan which defines the actions the EC intends to take in order to regulate and promote the use of biomass in energy production and consumption. Some of these measures have already given rise to secondary EC law. Here, some technical specifications on biomass must be recalled. First, bioenergy is the energy produced from biomass. Biomass means any plantderived organic matter available on a renewable basis. Biomass energy systems can then be based on a wide range of feedstock. They use many different conversion technologies to produce fuels in solid, liquid and gaseous forms. These can then be used to provide heat, electricity and transport fuels. Second, the combustion of biomass fuel is not carbon neutral, since it emits CO2 to the atmosphere by the process of combustion. This process is, however, renewable electricity gross electricity consumption reached 14.65 per cent of in 2006. Source: EurObserv’ER, State of Renewable Energies in Europe 2007, pp. 71-76. 

Communication from the European Commission to the European Council and the European Parliament, Renewable Energy Road Map – Renewable energies in the 21st century: building a more sustainable future, COM(2006)848 final, Brussels, 10.01.2007.



European Council 8/9 March 2007, Presidency Conclusions.



See European Commission, Green Paper, Towards a European strategy for the security of energy supply, COM(2000) 769 final, 29.11.2000.

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natural, part of the so-called ‘carbon cycle’. In other words, it is about balancing CO2 absorption and emission rates.10 It follows from above that biomass is a sustainable fuel source if correctly managed, available in various forms and subject to diverse uses. This concerns the balance of carbon emissions, but also the balance to keep regarding the exploitation of natural resources. In order to evaluate the state of integration of the sustainable development principle into the energy policy, and in doing so, the possibility of a sustainable energy future for the EC via the use of bioenergy, the paper attempts to answer the following legal questions: • how is biomass defined under EC legislation, and how does the legal qualification of the biomass impact the use of bioenergy? • how is the production of energy from biomass, i.e. biomass conversion, regulated? • how is the use of energy specifically produced from biomass regulated? • what EC legal framework is applicable to the promotion of biomass?



2 Definition of Biomass under EC Law

While EC legislation does provide a definition of biomass (A), it seems to run into difficulties when applied to the diverse forms of biomass (B). Some solutions are currently evaluated by the European Community in order to clarify these difficulties (C).



2.1 The Existing Legislation Defining Biomass

According to Article 2 (b) of Directive 2001/77/EC of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market, biomass shall mean ‘the biodegradable fraction of products, waste and residues from agriculture (including vegetal and animal substances), forestry and related industries, as well as the biodegradable fraction of industrial and municipal waste’. In its initial proposal for a Directive,11 the European Commission specifies that biomass should here be defined as products from agriculture and forestry, vegetable waste from agriculture, forestry and from the food production industry, untreated wood waste and cork waste.

10

See Biomass Energy Centre, established in April 2006 by the UK government as part of its Action Plan on Biomass. See as well the Biomass Task Force Report and the Government’s response to this Report on the Website of the Biomass Energy Centre. http://www.biomassenergycentre.org.uk.

11

COM(2000) 279, Brussels, 10.05.2000, p. 11.

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This definition is repeated in identical terms at Article 2.1 of Directive 2003/30/EC on the promotion of biofuels. Directive 2001/80/EC of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants,12 lists in its Article 2.11 some examples of what could be qualified as biomass: products consisting of any whole or part of a vegetable matter from agriculture or forestry which can be used as a fuel for the purpose of recovering its energy content and the following waste used as a fuel: a) vegetable waste from agriculture and forestry; b) vegetable waste from the food processing industry, if the heat generated is recovered; c) fibrous vegetable waste from virgin pulp production and from production of paper from pulp, if it is co-incinerated at the place of production and the heat generated is recovered; d) cork waste; e) wood waste with the exception of wood waste which may contain halogenated organic compounds or heavy metals as a result of treatment with wood preservatives or coating, and which includes in particular such wood waste originating from construction and demolition waste.

Another list of biomass products is provided by the European Committee for Standardization (CEN), and in particular in the following standards: CEN/TC 335 13 or CEN/TS 1458814 . 12 13

OJ L 309, 27.11.2001, p. 1.

CEN/TC 335 is the technical committee developing the draft standard to describe all forms of solid biofuels within Europe. CEN is the European Association of National Standardisation Institutes, the so-called National Standards Bodies (NSBs). CEN/TC 335 includes in a consistent manner, the same list of products as Directive 2001/80/EC, i.e.: -vegetable waste from agriculture and forestry; -vegetable waste from the food processing industry (if the heat generated is recovered); -(fibrous) vegetable waste from virgin pulp production and from production of paper from pulp, (it is co-incinerated at the place of production and the heat generated is recovered); -cork waste; -wood waste with the exception of wood waste which may contain halogenated organic compounds or heavy metals as a result of treatment with wood preservatives or coating, and which includes in particular such wood waste originating from construction and demolition waste.

14

CEN/TS 14588 – Terminology standard - Biomass (term 4.19) – material of biological origin excluding material embedded in geological formations and transformed to fossil; - Biofuel (term 4.14) – fuel produced directly or indirectly from biomass; - Fruit biomass (4.64, CEN/TS Table 1) – Biomass from parts of a plant which hold seeds. E.g. berries, stone/kernel fruits, nuts and acorns, fruit processing industry, by products and residues; - Herbaceous fuels (4.78, CEN/TS Table 1) – Biomass from plants that have a non-woody stem and which

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It follows from the above that if the EC legislation provides for a consistent definition of biomass, the use of the definition, and in particular its interpretation and level of details, by EU Member States, will be subject to divergences.



2.2 Problems Related to the Application of the Current Definition of Biomass

The definition of biomass has given rise to many discussions, not least in respect of three major issues. First, as technological progress brings new opportunities in the exploitation of biomass resources, the list of biomass products subject to conversion will inevitably grow.15 Second, the nature of the biomass patrimony varies greatly from one Member State to another one. To cite an example, as forestry resources in the Netherlands are limited, the authorities have adopted a much wider definition of biomass than the other Member States. Third, the problem is particularly acute for biomass production vis-à-vis waste definition. It remains unclear under the current definition of waste16 if a by-product of agriculture or forestry which is intended for production of bioenergy, without being discarded in the strict meaning of the directive, has to be considered as waste. One could also question whether the by-product of waste incineration should not already be considered as biomass. The qualification of the biomass product as waste is of particular importance for the development of biomass conversion activities. Directive 2006/12/EC on dies back at the end of the growing season. E.g. cereal crops, grasses, oil seed crops, root crops, flowers, herb processing industry, by-products and residues. CEN/TS 14588 – Woody biomass - Woody biomass (4.147) – Biomass from trees, bushes and shrubs; forests and plantation wood, wood processing industry by-products and residues, and used wood; - Forest and plantation wood (4.63) – Woody biomass from forests and/or tree plantations. E.g. complete tree, energy forest trees, energy plantation trees, logging residues, thinning residues, tree section, whole tree; - Wood processing industry by-products and residues (4.145) – Woody biomass residues originating from the wood processing as well as the pulp and paper industry. E.g. bark, cork residues, cross-cut ends, edgings, fibreboard residues, fibre sludge, grinding dust, particle board residues, plywood residues, sawdust, slabs, and wood shavings. 15

Recently, new forms of biomass transformation have appeared, such as ‘new biomass’. The latter, to quote Larkin, Ramage and Scurlock, comprises ‘materials that are processed on a large, commercial scale, usually in the more industrialized countries. The input to these processes may be purpose-grown energy crops, but often they are organic wastes. The output may be useful heat, or any of a wide range of solid, liquid or gaseous biofuels.’ See Larkin, Ramage and Scurlock (2004).

16

Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste, OJ L 114, 27.04.2006, p. 9. Article 1.1 (a) defines waste as ‘any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard’.

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waste provides specifically in its Article 3 that ‘Member States shall take appropriate measures to encourage: […] (b) (ii) the use of waste as a source of energy’. But being qualified as waste, or ‘production residue’,17 makes biomass subject to the whole waste legislation, which entails additional administrative barriers for the take off of the sector.18 Biomass products could also be qualified as ‘by-product’,19 circumventing treatment as waste under specific circumstances.20 The consequence of these divergences is a different application of the EC legislation to what could be qualified as biomass. It includes measures to promote biomass, including state aids. But it also concerns the nature and intrinsic properties of biomass which can then be put on the internal market and subject to the free movement of goods. As a matter of example, the European Parliament debated during the negotiations on Directive 2001/77/EC the interpretation of biodegradable fraction in the processing of electricity. In its report for the first reading, the European Parliament proposed the following definition of biomass: biomass, with insignificant impurities, meaning the biodegradable fraction of materials from agriculture and forestry, wood and cork waste, biodegradable byproducts of the pulp and paper industry and the digestion of the biodegradable fraction of separated municipal wastes.21

The fact that the distinction between separated and non-separated waste was deleted in the final text of the Directive meant that Germany, where only separated biodegradable waste was supported, could sell the non-separated electricity in other Member States as green, but not domestically.22 Even in the final text of the Directive, one can see the result of the compromise between the European Parliament and the Council on the question of 17

In the Judgment of the Court (Sixth Chamber) of 11 September 2003, AvestaPolarit Chrome Oy, Case C-114/01 (European Court reports 2003 Page I-08725), the Court précised the notion of ‘production residue’, saying that: ‘As regards the residues whose use is not necessary in the production process for filling in the galleries, they must in any event be regarded in their entirety as waste.’

18

See Renewable Energy and International Law Project (REIL) (2006).

19

In Case C-9/00 Palin Granit Oy and Vehmassalon kansanterveystyön kuntayhtymän hallitus [2002] ECR I-3533, the Court said that ‘the reasoning applicable to by-products should be confined to situations in which the reuse of the goods, materials or raw materials is not a mere possibility but a certainty, without any further processing prior to reuse and as an integral part of the production process’ (36).

20

See on the distinction of waste and ‘by-product’, Interpretative Communication on waste and by-products from the European Commission, published on 21.02.2007 (COM(2007)59 final).

21

Amendment 27 concerning Article 2(1), European Parliament, Report on the proposal for a European Parliament and Council Directive on the promotion of electricity produced from renewable energy sources in the internal electricity market, Committee on Industry, External Trade, Research and Energy, First Reading, 30 October 2000.

22

Werring (2006) 21.

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the definition of biomass. On the one hand, the European Parliament won acceptance for the following at the end of Recital 8 of the preamble of Directive 2001/77/EC: Support in favour of RES should be consistent with other Community objectives, for example respect for the waste treatment hierarchy. Therefore the incineration of non-separated municipal waste should not be promoted under this directive and under a future support system for RES.23

On the other hand, the Council maintained the right of the Member States to use a different definition of biomass in their own legislation, ‘for purposes other than those set out in this Directive’.24



2.3 Solutions under Evaluation

Both the European Commission and the European Bioenergy network BIONET II25 demonstrate divergence in the definition of biomass in the legislation of the Member States, even if they refer to Article 2 of Directive 2001/77/EC as ‘the’ definition applicable in EC legislation. In order to promote the use of biomass as a source of energy, the European Commission has taken a proactive stance in its proposal for a revision of the waste framework directive. In particular, the European Commission proposes to exclude from the scope of the directive ‘faecal matter, straw and other natural non-hazardous substances from agricultural production that are used in farming or for the production of energy from biomass through using processes or methods which do not harm the environment or endanger human health.’26 It is obvious that what the European Commission is targeting here are the non hazardous substances from agriculture and forestry, which represent the main part of biomass products. The European Parliament, which is still examining the draft revision of the waste framework directive under the codecision procedure, is favourable to the exclusion of biomass products from the scope of the directive, as well as some by-products. The draftsman on the EP Committee on Industry, Research and Energy (ITRE) stresses, however, that ‘given the conflicting demands on biomass from waste, it is important that bioenergy should not be used as an 23

Amendment 2 concerning Recital 8, European Parliament, Report on the proposal for a European Parliament and Council Directive on the promotion of electricity produced from renewable energy sources in the internal electricity market, Committee on Industry, External Trade, Research and Energy, Second Reading, 22 June 2001.

24 25

Recital 9, Directive 2001/77/EC.

http://www.eubionet.net/.

26

Article 2.3, Proposal for a Directive of the European Parliament and the Council on waste, COM(2005)667, Brussels, 21.12.2005.

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excuse to promote waste incineration over more resources-saving options such as reuse, recycling or composting’.27 The European Commission intends to clarify the definition of waste. This also concerns biomass from waste, and in particular biofuel uses. Here, the European Parliament calls for the definition of different types of second generation biofuels in order to distinguish, given the impacts on the environment, between sylviculture products and products derived from lignocellulosic waste materials, landfill organic waste and raw materials of animal and vegetable origin.28

Notwithstanding the ongoing discussion on the introduction of such a detailed definition, it nevertheless stresses the need for a common understanding and application of the definition of biomass. Without such harmonisation, the functioning of the internal market could suffer and new branches of unsustainable waste management appear.



3 Regulation of the Production of Bioenergy from Biomass under EC Law

Different processes are used for the transformation of biomass (A), which entails the application of a different legislation (B). This also stresses the importance of identifying at an early stage the legal qualification of biomass, as seen in section 1.



3.1 The Different Modalities of Biomass Conversion

Except in few cases, it is usually not possible to use biomass raw materials directly. A conversion operation is required to produce solid, liquid or gaseous fuels that can then be used to generate heat, electricity or fuel for vehicles.29 Conversion is a mechanical, thermal or biological process, as illustrated in figure 1.

27

Report on a Strategy for biomass and biofuels, Committee on Industry, Research and Energy (ITRE), European Parliament, 12.10.2006. Draftsman: W. Langen, point 22.

28

Idem, p. 39.

29

Above n 14, p. 106.

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Figure 1 Thermal conv ersion

Biological conversion

Mechanical conversion

Product

Market

Pyrolysis

Bio-oil

Chemicals

Gasification

Fuel gas

Heat

Combustion

Heat

Electricity

Fermentation

Ethanol

Transport fuel, etc.

Digestion

Bio-gas Mechanical

Rape oil

Source: ‘Biomass conversion pathways’, from Biomass – Green Energy for Europe, European Commission, Directorate-General for Research, 2005, p. 19. Conversion processes are here processes which change the nature of the biomass. Mechanical processes, such as the cut or compaction of wood biomass, prepare the biomass for conversion which can then proceed by way of thermal processes such as combustion, gasification and pyrolysis.30 These conversion processes do have some impact on the environment, and specific EC regulations are in force to limit or avoid such problems.



3.2 The Applicable Legal Regime to the Different Biomass Conversion Methods

As mentioned above, biomass is a neutral carbon fuel if well managed. The conversion of biomass into bioenergy requires an industrial process subject to regulation, as any industrial activity, in order to limit emissions and adverse effects on human health and the environment. As the burning of biomass fuel is not a carbon free activity, the installation may be subject to the Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (IPPC).31 Operation within this regulation is allowed by permits that set operating conditions, based on the use of ‘Best Available Techniques’ (BAT). 30

As mentioned in a DTI Report, gasification and pyrolysis generally have a good environmental image whereas combustion has a bad public image. Technology Status Report, Waste /Biomass co-generation with coal, Clean Coal Technology Programme, 017, DTI, February 2002.

31

OJ L 257, 10.10.1996, as modified. The IPPC Directive imposes a requirement for industrial and agricultural activities with a high pollution potential to have a permit which can only be issued if certain environmental conditions are met, so that the companies themselves bear responsibility for preventing and reducing any pollution they may cause. Integrated pollution prevention and control concerns highly polluting new or existing industrial and agricultural activities, as defined in Annex I to the Directive.

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Also concerning the impact of the conversion activity on the environment, Council Directive 84/360/EEC of 28 June 1984 on the combating of air pollution from industrial plants, as amended, introduced a general framework requiring authorisation prior to any operation or substantial modification of industrial installations which may cause air pollution. The conversion activity of biomass can also fall under the scope of the large combustion plants Directive 2001/80/EC (LCP), which aims at reducing emissions of acidifying pollutants, particles, and ozone precursors. The LCP Directive encourages the combined generation of heat and power (CHP) and sets specific emission limit values for the use of biomass as fuel. The delivery of a permit under these directives may be in addition to the requirements of the waste legislation, according to the nature of the biomass product. If the biomass product originates from waste, the application of the following EC waste legislation, which is note limitative, should be evaluated. First, the thermal treatment of biomass from waste is regulated by the waste incineration Directive 2000/76/EC.32 Excluded from the scope of the directive are a certain number of plants which only treat waste – which can be qualified as biomass – such as vegetable waste from agriculture and forestry, wood waste (with the exception of wood waste which has been treated with wood preservatives or coatings), or cork waste. Non-treated residues from agriculture and forestry are included too. However, if the waste is likely to contain hazardous substance, it could fall again under the scope of the directive, such as treated wood waste or timber from construction and demolition sites. Second, if bioenergy is obtained through gasification, i.e. biogas, the operator of the facility should refer to Directive 99/31/EC on the landfill of waste.33 The Directive intends to prevent or reduce the adverse effects of the landfill of waste on the environment, in particular on surface water, groundwater, soil, air and human health. To achieve this goal, Member States can proceed to recycling, composting of biodegradable waste, production of biogas and other recovery activities. In the hierarchy of waste management, land-filling of waste is the last option.34



4 Regulation of Bioenergy Produced from Biomass under EC Law

As mentioned before, bioenergy is the result of biomass conversion. Once biomass is converted, bioenergy is used for different purposes (A), and regulated according to these different uses (B). Bioenergy, qualified as a good, is also subject to free movement inside the internal market, which would require identification of the quality of biomass. One solution advanced involves issuing certification specifying the different production methods of biomass (C). 32 33

OJ L 332, 28.12.2000, as modified.

OJ L 182, 16.07.1999, as modified.

34

See EC Thematic Strategy on the on the prevention and recycling of waste, 21 December 2005. See as well de Sadeleer’s chapter in this volume.

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4.1 The Different Uses of Bioenergy From Biomass

Three main energy sectors based on the use of biomass are identified by the European legislation as electricity/power, heat and transport fuels.35 Electricity/Power can be generated by co-firing a portion of biomass in existing power plants or conventional boilers (pyrolysis and combustion), by gasification (fuel gas) or anaerobic digestion (biogas). Heat is mainly produced by pyrolysis (resulting in bio-oil) and gasification (fuel gas). Biomass can here be used for small scale heating of individual households, or on a bigger scale in district heating. Concerning transport fuels, the latter can be obtained directly from biomass conversion into liquid fuels. The two most common biofuels are ethanol and biodiesel.



4.2 The Regulation Of Bioenergy Utilisations of Biomass

The use of bioenergy from biomass goes through a whole supply chain that can be secured by regulation. If the treatment of storage and transport is important, it remains common to other products. The following sections focus more on legislation specific to the use of energy produced from biomass.



4.2.1 Power and Heat Generation From Biomass

The key regulatory instrument on power and heat generation is Directive 2004/8/EC on Cogeneration of Heat and Power, which aims at creating a framework for promotion and development of high efficiency cogeneration of heat and power. As recalled by the Council in its Conclusions on Biomass,36 Directive 2004/8/EC is of particular importance for the use of biomass, as a fuel being used to realise the cogeneration potentials. Gas produced from biomass is also regulated at the transmission, distribution, supply and storage levels, through Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC.37 This directive regulates the organisation and functioning of the natural gas sector, 35

Another application of biomass transformation is chemicals, through the so-called ‘biochemistry’. But since the purpose of this paper is the development of sustainable energy, the analysis is limited to the study of the energy sector.

36

Council Conclusions on Biomass, Transport, Telecommunications and Energy Council meeting, 8-9 June 2006.

37

OJ L 176 of 15.07.2003, p. 57, as corrected.

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access to the market, the procedure for the granting of authorisations for transmission, distribution, supply and storage of natural gas as well as the operation of systems. As stated in Article 1.2 of Directive 2003/55/EC, gas from biomass is explicitly included in the scope of application of the directive. The provisions of the directive aim at ensuring that gas from biomass is granted non-discriminatory access to the gas system, thus providing that ‘such access is permanently compatible with the relevant technical rules and safety standards’ (Recital 24). The directive does not provide for more distinctive rules relative to gas from biomass, and the general framework set by the directive is indistinctively applicable to natural gas or gas from biomass.



4.2.2 Power Generation From Biomass

Directive 2001/77/EC sets the general framework for electricity generated from biomass, as for other renewable energy sources. It includes indicative national targets for energy production.



4.2.3 Heat Production From Biomass

The issue of heat production from biomass is twofold. Biomass can first be used in residential and industrial heating. The applicable legislation would then be Directive 2004/8/EC on cogeneration, focused on the process of heat generation, but also Directive 2005/32/EC on eco-design which focuses on the technique used for heat generation, by improving the performance of household biomass boilers, for example. Second, biomass can be used for district heating. Only a fraction of the residential heat demand in the EU is covered by district heating. The Commission, in its Biomass Action Plan, appeals to Member States to add the supply of district heating to the list of goods and services subject to a reduced VAT rate as, for example, in the case of natural gas and electricity which are taxed reduced VAT rates.38 Finally, Directive 2002/91/EC on the energy performance of building should also be mentioned as a framework for the use of bioenergy in heat consumption.

38

See Biomass Action Plan, point 2.2 ‘The renewal of district heating’ where the Commission argues that it is easier to develop biomass for use in district heating than individual households as the latter runs into competition problems. Thus, district schemes should be converted to use biomass as fuel, and the supply of district heating encouraged by a reduced VAT rate. This argument was advanced by the European Commission in its proposal for a Council Directive amending Directive 77/388/EEC as regards reduced rates of value added tax, of 23.07.2003 (COM (2003) 397. p. 24), and appears in Recital (1) and amended Article 12.3 (b) of Directive 77/338/EEC following the adoption of Directive 2006/18/EC of 14 February 2006 (OJ L 51 of 22.02.2006).

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4.2.4 Transport/biofuels Production From Biomass

The use of biomass in the production of transportation fuels is regulated by Directive 2003/30/EC on the promotion of the use of biofuels or other renewable fuels for transport.39 If the directive aims at promoting the use of biofuels in the transportation sector, it also puts some constraints on the quality standards to be fulfilled, in particular regarding blending of conventional and bio-fuels. 40 The standard issuance assumes increasing importance when it comes to trade in bioenergy products and free movement within the internal market.



4.3 Certification of Biomass as an Answer to Sustainability Issues

As the definitions of biomass in the legislation of Member States differ, a certain uncertainty arises regarding the manner in which biomass is used for bioenergy generation (1) and the nature of the biomass used for bioenergy generation (2). The lack of definitional standardisation is often claimed to slow biomass development and trade. More importantly, it raises deep concerns related to the greenness of biomass production. In order to address these failings, different national and European regulatory measures require or promote the definition of standards to biomass products.



4.3.1 Certification as a Safeguard of Sustainable Bioenergy Use

The need for a quality standard for energy produced from biomass is particularly acute for biofuels. As underlined by draftsman Werner Langen in the ITRE Committee Report to the European Parliament on the revision of the waste framework directive, the EP believes that there is an urgent need to lay down as soon as possible the technical standards for biofuels and to review Directive 98/70/EC of the European Parliament and of the Council of 13 October 1998 relating to the quality of petrol and diesel fuels and its relationship to biofuels use, without compromising the environmental and health considerations on which these measures were based; stresses that the existing standards should only be adjusted, or Directive 98/70/ EC should only be amended, once the Commission has finalised its assessment of the impact on air quality of the use of higher biofuels blends in petrol and diesel; urges in particular an overhaul of the existing standard EN 14214 in order to include additional types of biomass. (point 37) 39

Directive 2003/30/EC of the European Parliament and of the Council of 8 May 2003 on the promotion of the use of biofuels or other renewable fuels for transport, OJ L 123 of 17.05.2003.

40

See Article 3.

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This proposal would strengthen the current provisions of Directive 2003/30/EC, which states that ‘new types of fuel should conform to recognised technical standards if they are to be accepted to a greater extent by customers and vehicle manufacturers and hence penetrate the market’(Recital 13). As the Directive also underlines in its preamble, 41 difficulties may be encountered in ensuring that new types of fuel meet current technical standards, which, to a large extent, have been developed for conventional fossil fuels. It advises the Commission and standardisation bodies to develop standards so that new types of fuel can be introduced, whilst maintaining environmental performance requirements. The development of European standards for biofuels is carried out by the European Standards Organisation (CEN), generally acting under mandate from the European Commission. In the 1980s the European Commission asked CEN to develop European Standards for diesel and petrol fuels of fossil origin. In the 1990s CEN started to specify the criteria for biodiesel and bioethanol. The first petrol and diesel standards (EN 228 and EN 590) were published in 1987 and have since been regularly updated. Standards for liquefied petroleum gas (LPG) (EN 589) and biodiesel (EN 14214) followed. Under EC legislation, CEN standards are mandatory requirements for fuels put on the market. More recently, the Commission mandated CEN to develop, as a first step, a European standard for pure bioethanol as a tradable commodity when used as a blending component in petrol up to 5 per cent by volume. In January 2003, a Taskforce of CEN/TC19 WG 21 (Specification for Petroleum) was requested to develop a draft specification for bioethanol. The approach focuses on the examination of all existing ethanol standards, i.e. US, Brazil, Canada, Poland, Sweden and Ukraine, and particularly ASTM D4806, the standard for denatured fuel ethanol. In March 2006, a first draft called “prEN15376” was published. It takes into account specific requirements of ethanol distribution and use in Europe, mentioning in particular low water content; range of non-harmful denaturants; and the level of impurities that will not harm exhaust gas treatment systems when used at up to 5 per cent. The next steps are the formal vote on the bioethanol standard EN 15376 in CEN Member States planned for early 2008, and the inclusion of EN 15376 in EN 228. Other documents will require a periodical update in relation to the improvement of test methods, i.e. appearance, water content, involatile material, oxygenates. This move towards the increased use of standards for limiting environmental harm of biofuel use is confirmed in the proposal for a new renewable energy sources Directive. 42 As it appears in the proposal, the European Commission is of the opinion that higher blends of biodiesel in diesel fuel than those envisaged by EN 590/2004 is an appropriate means of ensuring the penetration of biofuels 41

See also Recital (13).

42

Proposal for a directive of the European Parliament and the Council on the promotion if the use of energy from renewable energy sources, COM(2008) 19 final, 23.01.2008, Brussels.

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in the European market. 43 The European Commission also proposes the adoption of sustainability criteria applicable to both biofuels and bioliquids. 44 The idea is here to avoid the use of biofuels as bioliquids in heating and electricity sectors, instead of being used properly as biofuels. All in all, standards play a double role in supporting biodiesel share in the European market and limiting environmental harms due to biofuels utilisation.



4.3.2 Certification as a Safeguard of Sustainable Biomass Production

In addition to guaranteeing the composition and quality of the bioenergy used, certification ensures that bioenergy production does not cause environmental harm throughout the production of feedstock, i.e. that it remains ‘sustainable’. As suggested by the European Parliament: ‘in order to ensure the sustainability of the production of bioenergy a mandatory environmental certification is needed which could be the appropriate tool to control the environmental impact of plantations. This may be the only way we can avoid the creation of solely a cost-oriented market which could encourage destructive and unsustainable practices mostly in third countries.’45 Environmental sustainability criteria for biofuels and bioliquids are included in the proposal for a new RES Directive under Articles 15 to 17. Of the criteria retained, one requires biofuels not to be produced from raw material cultivated on land with recognised high biodiversity value or from land with high carbon stock. Another exhorts compliance with EU environmental requirements for agriculture such as the ones defined in Annex III and IV of Council Regulation (EC) No. 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers. The application of such criteria on agricultural products from third countries would however not be compatible with international trade rules. The proposal for the new RES Directive envisages that the Commission accredits voluntary national or international schemes setting standards for the production of agricultural or forest products, and national, multinational or international schemes to measure GHG savings. Such standards would demonstrate compliance with the pre-defined environmental sustainability criteria. Bilateral and multilateral agreements between the Community and third coun43

See Recital (48).

44

See Recitals (35) and (36) of the proposal for a directive. According to Article 2 (e) and (f) of the proposal for a directive, bioliquid means ‘liquid fuel for energy purposes produced from biomass’, and biofuel ‘liquid or gaseous fuel for transport produced from biomass.’

45

European Parliament, Opinion of the Committee on the Environment, Public Health and Food Safety (ENVI) for the Committee on Industry, Research and Energy (ITRE) on EU Strategy on Biomass and Biofuels, adopted on 13.09.2006. Draftsman: L. Aylward.)

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tries would also be acceptable to demonstrate that biofuels and other bioliquids produced from raw materials cultivated in those countries comply with the environmental sustainability criteria. 46 Regarding the particular case of exploitation of forestry resources, the European Commission intends to develop guidance by the instauration of a Standing Forestry Committee47 supporting the Biomass Action Plan implementation and pellet/wood chip markets, Member States assessing the availability of wood and wood residues. The purpose would be then to promote the use of forestry in the production of biomass, but also to correctly manage them. In its Forest Action Plan, the European Commission proposed 18 key actions to be implemented jointly with Member States during the 2007–11 period, including Key action 4 – promote the use of forest biomass for energy generation. Similar international initiatives already exist, such as the Forest Stewardship Council (FSC) that provides certification of products (such as timber and paper) from well-managed forests; Pan-European Forest Certification (PEFC); and the Programme for the Endorsement of Forest Certification Schemes (PEFC). For the moment, some of these certification schemes have been used at Member State level. But, as mentioned above, the Commission is about to propose the use of certification schemes as a compliance method to environmental criteria. If the adoption of standards favours cross-border trade within Member States, certification schemes for compliance may challenge World Trade Organisation (WTO) rules. In the language of the WTO and the Technical Barriers to Trade Agreement (TBT Agreement), a distinction is made between mandatory measures that regulate product characteristics or their related processes and production methods (so-called “technical regulations”), and voluntary measures (termed “standards”) applied to products or related processes and production methods. The major difference between technical regulation and standard lies in compliance. As explicated by the WTO, While conformity with standards is voluntary, technical regulations are by nature mandatory. They have different implications for international trade. If an imported product does not fulfil the requirements of a technical regulation, it will not be allowed to be put on sale. In case of standards, non-complying imported products will be allowed on the market, but then their market share may be affected if consumers’ prefer products that meet local standards such as quality or colour standards for textiles and clothing. 48

46 47

See Article 16.4.

Key Action 4, Communication from the Commission to the Council and the European Parliament on An EU Forest Action Plan, COM(2006)302 final, Brussels, 15.06.2006.

48

See TBT Agreement Website: http://www.wto.org/english/tratop_e/tbt_e/tbt_e.htm.

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Certification of bio-energy poses additional questions. In particular, it requires differentiating the basis on which the measures are adopted. Measures based on product production methods (PPM) will obviously fall under the scope of the TBT Agreement. But it remains unclear whether the TBT Agreement covers measures that are based on non-product-related production standards. 49 Product-related production measures aim at ensuring that the characteristics of the product comply with a certain level of quality, safety or functionality. Non-product-related production measures will, for example, address issues related to the manufacturing of the product such as labour/social conditions or environmental harm consecutive to the production phase. Such non-productrelated measures do not fall under the scope of the TBT Agreement, and general GATT rules will apply. A scheme based on levels of greenhouse gases emissions released during the process of biofuels production, for example, might not fall under the scope of the TBT Agreement. But in the event that the TBT Agreement does not apply, the GATT would most likely apply.



5 EC Regulatory Framework for the Promotion of Biomass as a Source of Energy

Public support for electricity from renewable energy sources is based on the assumption that, in the long run, it can compete with conventionally produced electricity in a liberalised energy market. Such support will be necessary to reach the Community’s objectives, in particular as long as electricity prices in the internal market do not reflect the full social and environmental costs and benefits of energy sources used.



5.1 EC Legal Instruments Designed to Promote Biomass



5.1.1 General Regulatory Framework for the Promotion of Renewable Energy Sources

The EC, in terms of promotion of renewable energy sources in energy generation or consumption, has generally proceeded through the adoption of directives. This has resulted in the adoption of different support schemes by Member States. As a reminder, Article 249 of the EC Treaty provides that ‘a directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods’.

49

WWF, Bioenergy Assurance Schemes and WTO Rules, Quick guide on some of the more important WTO principles and measures relevant to promoting certification and labelling in bioenergy (2006).

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The same applies for the promotion of biomass. In application of the subsidiarity principle,50 the Biomass Action Plan established by the European Commission allows Member States flexibility and discretion in the determination of instruments for promoting bioenergy. If the need for public support is recognized by EC legislation,51 the same EC legislation requires that this aid should not distort competition, including with all types of energy sources. In order to prevent such distortions, official support for biomass production and use must comply with community state aid policy. The investment and operating aids can be authorised by the European Commission on the basis of the Community guidelines State Aid for environmental protection. In its revised version of the Community guidelines on State aid for environmental protection as adopted in 2001,52 the European Commission takes the view that ‘aid may be necessary in particular where the technical processes available do not allow energy to be produced at unit costs comparable to those of conventional sources’. The recently published 2008 Guidelines reiterate the same argument of necessity accompanied by proportionality requirement. The attribution of state aids to biomass production, in the amounts set by the Guidelines, must be notified and consistent with these rules.



5.1.2 Instruments Designed to Promote the Use of Biomass in the EU

The promotion of electricity generated from renewable energy sources, including biomass, is governed by Directive 2001/77/EC. As mentioned before, if the Directive defines an indicative consumption target for Member States, the latter are free to choose the manner in which they comply with the directive. In its 2005 Communication on the support of electricity from renewable energy sources,53 the Commission identifies four groups of support systems operational within the EU Member States: feed-in tariffs, green certificate systems, tendering and tax incentives. Instruments, however, differ across the primary source of the biomass. The results of the European Commission evaluation of current promotion systems are that for biomass sector in relation to forestry, tax incentives or investment are the most efficient, together with feed-in tariffs.54 The European Commission 50 51

Article 5 of the EC Treaty.

See Recital (12) Directive 2001/77/EC.

52

European Commission Communication nr. 2001/C 37/03: Community guidelines on state aid for environmental protection – Official Journal C 37 of 03.02.2001, § 55.

53

Communication from the European Commission on The support of electricity from renewable energy sources, COM (2005) 627, 07.12.2005.

54

‘Denmark’s system of feed-in tariffs and centralised co-generation plants using straw combustion and the Finish hybrid support system (tax relief and investment) clearly show the best performance, in

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concludes in the same Communication than for the biogas sector, six countries have an effectiveness higher than the EU average, four of them using feed-in tariffs (Denmark, Germany, Greece and Luxembourg) and two green certificates (UK and Italy). Feed-in tariffs have shown some positive results in Denmark, Finland and Germany, and the legal basis for tax exemption, as recognised as an efficient means, can be found in the EC legislation itself. Council Directive 2003/96/EC of 27 October 2003 structures the taxation of energy products and electricity within the EC. It allows total or partial exemptions or reductions in the level of taxation on electricity generated from renewable energy sources, including biomass or products produced from biomass.55 Directive 2003/96/EC also allows Member States to apply an exemption or a reduced rate of taxation under fiscal control on the taxable products falling under the scope of the directive where such products are made up of, or contain, one or more of products falling within CN codes 3824 90 55 and 3824 90 80 to 3824 90 99 for their components produced from biomass.56 Similarly, if the use of tradable green certificates is not a mandatory requirement, the recognition of guarantees of origin between Member States is made mandatory in Directive 2001/77/EC57 and Directive 2004/8/EC.58 In the biofuels sector, the Commission is in favour of increasing the demand for biofuels by setting obligations requiring fuel supply companies to incorporate a given percentage of biofuels in the fuel they place on the market.59 This move towards binding targets for biofuels was backed by the Heads of State and Government at the 2007 Spring Council where they agreed on a binding miniterms of both effectiveness and economic efficiency of support. A long tradition in high-tech biomass use of energy purposes, stable planning conditions and a combination with heat generation can be considered as key reasons for this development. Although feed-in tariffs in general show better outcomes, since investor risks where green certificates are concerned seem to hamper the real take-off of the biomass sector, the analysis is more complex in the biomass forestry sector. Factors other than the choice of financial instrument (infrastructural barriers, installation sizes, optimal forest management and the existence of secondary instruments, etc.), considerably influence the effectiveness of systems. In nearly half of European countries, the support for biomass forestry is insufficient to develop this high potential sector further’ (p. 7). 55

Article 15.1 (b), Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity, OJ L 283, 31.10.2003, pp. 51-70.

56 57

See Article 16, Council Directive 2003/96/EC, ibid.

Article 5, Directive 2001/77/EC, Guarantee of origin of electricity produced from renewable energy sources.

58

Article 5, Directive 2004/8/EC, Guarantee of origin of electricity from high efficiency cogeneration.

59

As the Commission proposes, ‘it is important to act on the demand side, increasing the need of bioenergy, by setting obligations and target rather than providing generalized subsidies to “energy crops”’. Communication from the European Commission, Biomass Action Plan, COM(2005) 628 final, Brussels, 07.12.2005.

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mum target of 10 per cent for the share of biofuels in overall transport petrol and diesel consumption by 2020 was also set.



5.2 Enabling the Availability of Biomass on the Internal Market: Trading Issues

Trade in biomass is presented as an alternative to direct public aid. The establishment of a trading platform for bioenergy should promote the sharing of technology knowledge and economic development in developing countries. In addition, energy markets worldwide may become more stable due to a larger number of energy suppliers compared to the current situation. Most important may be the effect such a market may have on the sustainable development and use of the vast bio-energy production potential in many world regions. As underlined by the European Parliament, there is a need to create at regional, national and European level transparent and open markets for biomass and biofuels which meet sustainable production standards and that these markets should be integrated into the system of the World Trade Organisation (WTO) and be compatible with a single, transparent and competitive energy market.60

But concerning the establishment of biomass trading at the European level, there are more projects than concrete accomplishments. The European Commission supports the idea, and a European trading floor for pellets and chips has already been initiated with support from the EU Intelligent Energy for Europe Programme. But the Commission must still evaluate the feasibility of a European-wide trading scheme. One also sees a great possibility in the promotion of biomass through the issuance of green certificates, in particular in importing countries such as Belgium and the Netherlands. In Wallonia, Belgium, the number of green certificates issued for producing electricity from biomass is coupled to the GHGs emitted during the production and transport of the biomass, and the accounting system is embedded in a law.



5.3 Enabling the Use of Energy From Biomass: Access to the Grid

Even if the generation of energy from biomass is promoted, a crucial issue for its successful development is access to the grid. The European Parliament urges the opening up of gas networks to receive biogas and transport

60

Report on a Strategy for biomass and biofuels, Committee on Industry, Research and Energy (ITRE), European Parliament, 12.10.2006. Draftsman: W. Langen. Point 4.

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it on a non-discriminatory basis where it is technically possible to inject it into and transport it safely in the natural gas system. To that respect, provisions already exist on that matter. Access to the grid, at a reasonable and transparent price, is the main objective of Article 7 of Directive 2001/77/EC. Directive 2001/77/EC also requires Member States to review their existing legislative and regulatory frameworks concerning authorisation procedures in order to reduce regulatory and non-regulatory obstacles, to rationalise and speed up administrative procedures and to ensure that the rules are transparent and non-discriminatory. But it requires from Member States to put in place measures to facilitate access to the grid for renewable electricity, conditioned to national interests.



6 What did the Brundtland Report do to Legal Thinking and Legal Development?…

The Brundtland report contains recommendations on energy in Chapter 7 under the title ‘Energy: Choices for Environment and Development’. The Report, which stresses security of energy supply as one of the main challenges, raises concerns about ‘a dependable future for energy’ in light of the adverse environmental effects of current energy consumption trends. Quoting studies on global energy futures, the Report distinguishes between two energy scenarios: a High Scenario and a Low Scenario. Of course, the Report argues in favour of the Low Scenario, while judging it ‘optimistic’, and stresses the disadvantages of the High Scenario (§13). According to the Report, energy and the environment are intimately linked, and deeply affect development. ‘Choosing an energy strategy inevitably means choosing an environmental strategy’ announces the Report (§3), which formulates under this wording nothing else than the integration principle. And that is certainly one of the major influences of the Brundtland report on the legal thinking, achieved by providing a frame for the concept of sustainable development and formulating the basic principles of integration of environmental concerns into other policies such as energy. Adopting the definition of sustainable development elaborated by the Brundtland Commission, the European Union elaborated its own Sustainable Development Strategy. The European Council in Gothenburg adopted the first EU Sustainable Development Strategy (SDS) in 2001. This was complemented by an external dimension in 2002 under the initiative of the European Council in Barcelona in view of the World Summit on Sustainable Development in Johannesburg (2002). Under the review of the SDS, the European Council of June 2006 admitted that

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unsustainable trends in relation to climate change and energy use, threats to public health, poverty and social exclusion, demographic pressure and ageing, management of natural resources, biodiversity loss, land use and transport still persist and new challenges are arising. Since these negative trends bring about a sense of urgency, short-term action is required, whilst maintaining a longer term perspective. The main challenge is to gradually change our current unsustainable consumption and production patterns and the non-integrated approach to policymaking.61

The inclusion of the integration principle in the EC Treaty can also be seen as another bequest from the Brundtland Report. First inserted into the EC Treaty in 1987 (1987 version of Article 174), it now appears in Article 6.62 In order to answer the above mentioned challenges, the Brundtland Report evoked the two sides of the problematic, i.e. energy efficiency and renewable energy sources. Energy efficiency measures are described as crucial for tackling the increase in energy consumption of a growing population. Biomass is addressed in relation to wood fuels as ‘the vanishing resource’. ‘Wood is being collected faster than it can regrow in many developing countries that still rely predominantly on biomass wood, charcoal, dung, and crop residues’ (§ 65). The pressure on biomass resources generates a risk of scarcity for these countries, thus hampering their long-term development and environmental situation. If the Report describes renewable energy sources as ‘the untapped potential’ (point V, Chapter 7), it also highlights the structural reforms necessary to attain the Low Energy Scenario conditions: 13. […] this path would require huge structural changes to allow market penetration of efficient technologies, and it seems unlikely to be fully realizable by most governments during the next 40 years. 14. The crucial point about these lower, energy-efficient futures is not whether they are perfectly realizable in their proposed time frames. Fundamental political and institutional shifts are required to restructure investment potential in order to move along these lower, more energy-efficient paths. (§§13–14)



7 … And Where can we go From Here?

Biomass is a source of a neutral carbon fuel if correctly managed. Technological progress offers each day a new possibility in the exploitation of natural resources for a purpose of energy production. Plankton, algae and

61

Renewed Sustainable Development Strategy, as adopted by the European Council on June 2006.

62

See Krämer (2007) pp. 21-23.

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other marine-based organisms63 constitute a biomass resource that have not yet been exploited and without doubt will soon be. In these conditions of rapid development and competition, the legislation has to frame and promote, to enable and secure. The Brundtland Report was calling for a structural change while reprimanding the international community for failing to address dilemmas of a safe and sustainable energy future. Indeed, the design of energy policies only began to take seriously into account the use of renewable energies and the effect on the environment very recently. Similarly, the legal translation of these preoccupations has taken a long time and is not yet attained at the global level. At European level, the EC legislation sets targets in terms of biomass use for energy production. But the modalities to reach these targets are often left to the Member States in application of the subsidiarity principle. If this approach allows more adaptation to the local conditions, it also gives rise to disparities in the implementation of the EC legislation, with legal uncertainty. If a harmonisation of the support mechanisms has been recognised as impossible for the moment, it would seem to be a matter of some urgency, however, to harmonise the definition of biomass products, both legally and technically, in order to facilitate their production and commercialisation. This is of particular importance in the context of international trading. Biomass products produced in Europe have to compete with other cost-effective biomass products produced abroad, maybe under a different incentive and quality regime. This is above all a question of sustainable development of the natural resources for security of energy supply and environmental protection: in other words, the regulation of sustainable energy, as already addressed by the Brundtland Report.

63

See Roux-Goeken (2007). Biodiesel is obtained from the lipids contained in the micro-algae, which could represent until 80% of their weight. In addition, micro-algae generation is based on nitrogen, phosphates and CO2. The main objective of undergoing research projects are to identify the micro-algae specie able to multiply itself more quickly and, in the same time, able to produce a high volume of lipids, and not necessarily through a genetically modified process.

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Bibliography Bodansky, Brunnee and Hey (2007) D. Bodansky, J. Brunnee and E. Hey (eds.), The Oxford Handbook of International Environmental Law (Oxford University Press, 2007).

Boyle (2004) G. Boyle (ed.), Renewable Energy – Power for a Sustainable Future (Oxford University Press, 2004, 2nd ed.).

Bradbrook (2003) A. J. Bradbrook, R. L. Ottinger (eds.), Energy Law and Sustainable Development, IUCN Environmental Policy and Law Paper No. 47 (IUCN, 2003).

Bradbrook, Lyster, Ottinger and Xi W. (2005) A. J. Bradbrook, R. Lyster, R. L. Ottinger and Xi W. (eds.), The Law of Energy for Sustainable Development, IUCN Academy of Environmental Law Research Studies, (Cambridge University Press, 2005).

Dhondt (2003) N. Dhondt, Integration of Environmental Protection into other EC Policies, (Europa Law Publishing, The Avosetta Series 2, 2003).

Johansson, Kelly, Reddy and Williams (1993) T. Johansson, H. Kelly, A. K. Reddy and R. H. Williams (eds.), Renewable Energy – Sources for Fuels and Electricity (Earthscan, Revised edition, 1993).

Krämer (2007) L. Krämer, EC Environmental Law (Sweet & Maxwell, Sixth Edition, 2007).

Larkin, Ramage and Scurlock (2004) S. Larkin, J. Ramage and J. Scurlock, ‘Bioenergy’, in G. Boyle (ed.), Renewable Energy – Power for a Sustainable Future (Oxford University Press, 2004, 2nd ed.).

Roggenkamp, Rønne, Redgwell and del Guayo (2007) M. Roggenkamp, A. Rønne, C. Redgwell and I. del Guayo (eds.), Energy Law in Europe – National, EU and International Law and Institutions (Oxford University Press, Second Edition, 2007).

Werring (2006) L. Werring (ed.), EU Energy Law, Volume III, EU Environmental Law – Energy Efficiency and Renewable Energy Sources (Claeys & Casteels, 2006).

Press Articles Roux-Goeken 2007 V. Roux-Goeken, Des micro-algues à l’étude pour produire du biocarburant (Le Monde, 21.02.2007).

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Official documents Clean-E project, • Development of ecological standards for biomass in the framework of green electricity labeling, WP 2.2 report, supported by Intelligent Energy Europe, February 2006. • Evaluation report on the experiences with the pilot application of biomass standards, supported by Intelligent Energy Europe, January 2007. Commission of the European Communities: • Proposal for a Directive of the European Parliament and of the Council on the promotion of the use of energy from renewable sources, COM(2008) 19 final, 23.01.2008, Brussels. • Communication from the Commission to the Council and the European Parliament on The Interpretative Communication on Waste and By-products, COM(2007) 59 final, Brussels, 21.02.2007. • Communication from the European Commission to the European Council and the European Parliament, An Energy Policy for Europe, COM(2007) 1 final, 10.01.2007. • Communication from the European Commission to the European Council and the European Parliament, Renewable Energy Road Map – Renewable energies in the 21st century: building a more sustainable future, COM(2006)848 final, Brussels, 10.01.2007. • Communication from the European Commission to the European Council and the European Parliament, Green Paper follow-up action – Report on progress in renewable electricity, COM(2006), provisional version. • Communication from the European Commission to the European Council and the European Parliament, Biofuels Progress Report – Report on the progress made in the use of biofuels and other renewable fuels in the Member States of the European Union, COM(2006) 845 final, Brussels, 09.01.2007. Accompanying document SEC (2006) 1721/2, Review of economic and environmental data for the biofuels progress report. • Communication from the European Commission, Biomass Action Plan, COM(2005) 628 final, Brussels, 07.12.2005. • Commission Staff Working Document, Annex to the Communication from the Commission, Biomass Action Plan, Impact Assessment, SEC(2005) 1573, Brussels, 07.12.2005. • Communication from the Commission, The Support of electricity from renewable energy sources, COM(2005) 627 final, Brussels, 07.12.2005. • EU Strategy on Biomass, COM(2003)34. • Biomass – Green energy for Europe, Directorate-General for Research, Sustainable Energy Systems, 2005, EUR 21350. • Communication from the Commission to the Council and the

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European Parliament on an EU Forest Action Plan, COM(2006) 302, Brussels, 15.06.2006. • Green Paper, Towards a European strategy for the security of energy supply, COM(2000) 769 final, 29.11.2000. • Communication from the Commission to the European Parliament and the Council, Single Market and Environment, COM(1999) 263 final, Brussels, 08.06.1999. • Comunication from the Commission, Strengthening Environmental Integration within Community Energy Policy, COM(1998) 571 final, Brussels, 14.10.1998. • Communication from the European Commission, Energy for the Future: Renewable Sources of Energy, White Paper for a Community Strategy and Action Plan, COM(97) 599 final, Brussels, 26.11.1997. • Council of the European Union, Council Conclusions on Biomass, 2735th Transport, Telecommunications and Energy Council meeting, Luxembourg, 8-9 June 2006. • Department of Trade and Industry (DTI) (UK), Technology Status Report, Waste /Biomass co-generation with coal, Clean Coal Technology Programme, 017, February 2002. Available on http:// www.dti.gov.uk/files/file19300.pdf. • EurObserv’ER, State of Renewable Energies in Europe (7th Report, 2007).

European Parliament: • Report on a Strategy for biomass and biofuels, Committee on Industry, Research and Energy (ITRE), European Parliament, 12.10.2006. Draftsman: Werner Langen. • European Parliament, Opinion of the Committee on the Environment, Public Health and Food Safety (ENVI) for the Committee on Industry, Research and Energy (ITRE) on EU Strategy on Biomass and Biofuels, adopted on 13.09.2006. Draftsman: Liam Aylward. • European Parliament, Opinion of the Committee on International Trade for the Committee on Industry, Research and Energy (ITRE) on a strategy on biomass and biofuels, as adopted on 11.09.2006. Drafstman: Jean-Pierre Audy. • European Parliament, Resolution on Renewable energy on the EU, plenary session of 28 September 2005. • Renewable Energy and International Law Project (REIL), The impact of waste legislation on the use of biomass as a renewable energy source (2006). • United Nations Environment Programme (UNEP), Handbook for legal draftsmen on environmentally sound management of

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energy efficiency and renewable energy resources. Edited by Lal Kurukulasuriya, Mark Radka, Richard L Ottinger and Adrian J Bradbrook. Published by the United Nations, New York, 2005. • WWF, Bioenergy Assurance Schemes and WTO Rules, Quick guide on some of the more important WTO principles and measures relevant to promoting certification and labelling in bioenergy (2006).

Table of Cases European Court of Justice • Case C-114/01, AvestaPolarit Chrome Oy [2003] ECR I-8725. • Case C-9/00, Palin Granit Oy and Vehmassalon kansanterveystyön kuntayhtymän hallitus [2002] ECR I-3533. • Joined Cases, Case C-418/97, ARCO Chemie Nederland Ltd v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer and C-419/97, Vereniging Dorpsbelang Hees, Stichting Werkgroep Weurt and Vereniging Stedelijk Leefmilieu Nijmegen v Directeur van de dienst Milieu en Water van de provincie Gelderland [2000] ECR I-4475.

Table of Legislation • Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste, OJ L 114, 27.04.2006. • Directive 2005/32/EC of the European Parliament and of the Council of 6 July 2005 establishing a framework for the setting of ecodesign requirements for energy-using products and amending Council Directive 92/42/EEC and Directives 96/57/EC and 2000/55/EC of the European Parliament and of the Council, OJ L 191 of 22.07.2005. • Directive 2004/8/EC of the European Parliament and of the Council of 11 February 2004 on the promotion of cogeneration based on a useful heat demand in the internal energy market and amending Directive 92/42/EEC, OJ L 52 of 21.02.2004. • Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity, OJ L 283, 31.10.2003, p. 51-70. • Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC, OJ L 176 of 15.07.2003, p. 57, as corrected. • Directive 2003/30/EC of the European Parliament and of the Council of 8 May 2003 on the promotion of the use of biofuels or other renewable fuels for transport, OJ L 123 of 17.05.2003. • Directive 2002/91/EC of the European Parliament and of the Council of 16 December 2002 on the energy performance of buildings, OJ L 1 of 4.1.2003.

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• Directive 2001/80/EC of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants, OJ L 309, 27.11.2001, p. 1. • Directive 2001/77/EC of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market, OJ L 283 of 27.10.2001. • Directive 2000/76/EC on the incineration of waste, OJ L 332, 28.12.2000, as modified. • Directive 99/31/EC on the landfill of waste, OJ L 182, 16.07.1999, as modified. • Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (IPPC), OJ L 257, 10.10.1996, as modified. • Council Directive 84/360/EEC of 28 June 1984 on the combating of air pollution from industrial plants, OJ L 188, 16.7.1984.

Abbreviations BAT Best Available Techniques CEN Comité Européen de Normalisation, European Committee for Standardization CHP Combined generation of Heat and Power EC European Community ENVI European Parliament Committee on the Environment, Public Health and Food Safety EU European Union FSC Forest Stewardship Council GHG Greenhouse Gases IPPC Integrated Pollution Prevention and Control ITRE European Parliament Committee on Industry, Research and Energy LCP Large Combustion Plants LPG Liquefied Petroleum Gas PEFC Pan-European Forest Certification PEFCS Programme for the Endorsement of Forest Certification Schemes PPM Product Production Methods SDS Sustainable Development Strategy VAT Value added tax WTO World Trade Organisation

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Sustainable Development: an Operational Principle? Lessons from the Spanish Experience on Intensive Urban Growth Angel-Manuel Moreno

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sustainable development: an operational principle?

1 Introduction

This contribution analyses whether the principle of sustainable development (hereinafter, “PSD”) is just a diffuse and arguable concept in the domain of “soft law”, or if it can be a workable and operational principle. We understand that this question cannot be answered with an across-the-board conclusion, but needs a case-by-case analysis. Accordingly, in this contribution we explore the actual, operational role played by the PSD in a specific national, legal order (the Spanish one) since the PSD was introduced and proclaimed in Spain as the basic pillar of the reformation of the land use law and policy. After presenting intensive urban growth as an environmental “evil” and revising the key legal texts that have been approved in that country during the last years, we will try to derive some conclusions about the possible operationalization and enforcement of the sustainable development paradigm in one domestic legal system.



2 Land Development, Building Activity and the Environment



2.1 Some Facts and Figures

Spain has experienced an unprecedented growth in urbanization and construction activity in the last ten years. As a matter of fact, it is the country that has experienced the greatest increase in building activity and urban growth in the whole Europe within the last decade. This situation is especially acute in some areas: coastal zones, wetlands and protected places and sites, etc. This assertion is confirmed by the following empirical data: 1. Between 1990 and 2000, more than 170,000 hectares have been developed and urbanized. Land development and building has become a major “national industry”: its share of Spain’s GDP, including direct and induced activity, is estimated to be almost 17 percent 2. The overall increment of developed land in the period 1995–2005 is very high: 24.45% in national, average figures. This means that the extension of developed land in this period alone represents a quarter of all urban growth in Spanish history. What is more, this urban growth has been dramatic in some *

Angel-Manuel Moreno is Professor of Administrative and Environmental Law at the Carlos III University of Madrid, Spain.



In this contribution we use a narrow concept of “sustainable development”, which considers the empirical or tangible consequences (measurable impacts) of a given economic activity on the environment and the capacity of nature to absorb such economic development. So to say, it is a concept of sustainability that can be supported by empirical or quantitative data. Consequently, we exclude from its meaning other elements frequently associated with it, such a gender equality, fairness and justice, etc.



Source: CORINE Land Cover, National Institutes and NGOs, and personal research.

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regions: 49.2 percent in the region of Madrid; 48.9 percent in the region of Valencia. 3. The extension of “artificial soil” (build land, streets, etc.) rose to 152 percent, as compared to 1987 figures. It is estimated that 240,000 hectares of forest were lost between 1990 and 2000, replaced by developed land. The situation is especially acute in certain tourist-attractive areas: development in the one kilometer zone along the coastline has skyrocketed (to 50.2 percent in the case of the province of Malaga, in the south of the country). 4. Spain has the highest ratio of houses per 1,000 inhabitants: 510, as against the EU average of 468.4. In 2005 alone, 812,294 new homes were built (more than UK, France and Germany put together). It is predicted that by 2011 there will be 17,200,000 homes in the country. The practice of having a second home by the sea is commonplace. Despite the high homebuilding rate, access to housing – especially for the young – remains an unresolved political problem, since the price of an apartment is too high for the average salary, and letting is not customary for cultural reasons. Speculation explains partly this circular problem: many new homes are not in use, since they are mainly bought to be sold later and make capital gains. Thus, in the Region of Madrid alone, it is estimated that there are some 300,000 empty homes.  This rate of urban growth is now increasingly seen as disproportionate, not only by environmentalist but also by urban experts. Traditionally, land development and housing have been regarded as a purely social and/or economic problem. In recent years, it has also become an environmental problem because the high pace of urban growth has gone beyond sustainability: land development is either endangering protected places or areas with a high ecological value (loss of habitat and biodiversity values), or increasing pressure on natural resources (such as water supply) that are scarce or seriously limited. What is more, the situation has become a matter of popular and political concern because it has serious criminal connections: the cases of political and administrative corruption in local government have multiplied in the last years: new land use plans have been illegally approved, building permits are fuelled by bribes, etc.



Torrevieja (a city in the south east of Spain) accounts for more than 61,700 second homes (out of a total of some 90,000 homes), which are only inhabited during the summer season.



There are numerous reasons: apart from a good overall economic situation, low interest rates have diverted family savings from the banking sector into real estate, thus creating an artificial “bubble”. The situation is fuelled by speculation and black money laundering, the introduction of the Euro, strong attraction of the country for tourists and foreigners, weak environmental performance, ineffective enforcement of land use law, etc.



In the well-known case of the city of Marbella (a famous hub for international, luxury tourism on the southern coast of Spain) the national government took the extraordinary measure to dissolve the city council. The senior and junior local politicians are currently in custody awaiting trial for alleged urban corruption.

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2.2 Environmental Impact of This Pattern of Urban Growth

When we think about environmental destruction and degradation, we usually think about polluting industries, or big public infrastructure projects spoiling the natural environment. Home building is not usually seen as a dangerous activity. However, the intensive land development process which is currently taking place in Spain is damaging the environment in many ways. Indeed, the environmental impacts of land use development are numerous, and may be sorted into “direct” and “indirect”. In the case of direct effects, we may identify: a) the destruction of vegetal cover; b) t he destruction and degradation of landscape, especially on the coastline. The well-known city of Benidorm (called the “Spanish Manhattan”) is a good example of wild concentration of high buildings on the shoreline; c) t he new constructions and multiplication of “artificial soil” also have the effect of “sealing” the soil, thus interfering with the natural processes of recharge of underground water reservoirs by rainfall; d) intensive, uncontrolled land development also accounts for the destruction of areas of high ecological value and even of “protected” places: some luxury resorts have been planned in valuable forests or in areas with scenery values which happen to be “parks” or natural reserves; e) t he loss of forest soil intensifies the desertification process, something which is especially serious in Spain, where almost one fourth of the total national extension is virtual desert or threatened by desertification processes. Intensive land use developments also trigger important indirect, environmental effects: a) Frantic building activity induces more and more mining activity to meet the need for sand, stone, and other building materials (granite, marble, etc.). This vector has a negative impact on sites such as riverbeds and wetlands, which may be part of protected natural areas. A very well-known case is the constant deterioration of the Regional Park of the southeast, in the Region of Madrid, where there are plenty of active extraction sites. In addition, this building activity needs more and more cement to be produced by factories with concomitant increases in CO2 emissions.. b) T he increase in the number of homes triggers more CO2 emissions from the housing sector, both direct (heating) and induced (air conditioning). 

According to a report made public in 2005, cement consumption in Spain has increased 140% between 1987 and 2004. See OSE (2006).



It should be recalled that Spain´s target under the Kyoto Protocol consists of an increase of +15% by 2008-12, taking into account 1990 figures. In 2006, national aggregate emissions figures showed an increase of 45% (!) over 1990 figures.

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This sector is sometimes neglected, but in Spain it absorbs 22 percent of the total energy production, and accounted for 15 percent of the overall CO2 emissions during 2004–05. c) New housing estates and even new towns put more demands on the water supply, but many of these new developments (like luxury resorts with annexed golf courses) are located in dry areas (such as the Mediterranean coast) where water scarcity is a major problem, intensifying the desertification problem of the country. d) T he new urban developments result in more waste and residual waters, and worsen the negative performance of the country in those environmental areas, since hundreds of towns and cities do not depurate their residual waters in accordance with EC standards. e) Finally, cultural and sociological impacts should not be disregarded. The majority of the new land developments do not follow the “compact city” model, but are based rather on disperse urbanization (urban sprawl). This pattern increases the dependence on cars and affirms the American way of life approach: “the mall, the car and the couch.” In addition, the new residential districts consist usually of gated, “private” neighborhoods, reducing social solidarity and cohesion.



2.3 International Repercussions

The disproportionate rate of urban growth in Spain, together with its environmental impact, has been a matter of concern for several international bodies and organizations. In 2006, the European Commission started an infringement procedure against Spain regarding the land use law of the Autonomous Community (region) of Valencia. The case is still pending before the ECJ. The Committee on Petitions of the European Parliament (EP) approved a report on 5 December, 2005, concerning more than 15,000 complaints regarding the legal framework of land use and development (Rapporteur: Ms. Fourtou). On another occasion, a delegation of the EP paid a visit to several regions of Spain (Valencia, Andalusia, Madrid) and, as a result of that, the said Committee approved a very critical report on 11 April, 2007, concerning the situation of land development and housing in Spain (Rapporteur: Chapman). The document reported the “wild” and accelerated pattern of urban growth, and Urges local authorities to consult their citizens and involve them in urban development projects in order to encourage acceptable and sustainable urban development where this is necessary, in the interest of local communities, not in the sole interest of the property developers, estate agents and other vested interest. 

The side effects of this urbanization model on human health are well documented. See Jackson (2003) pp. 1382-1284.



Spain submitted its observations to the Commission in January 2007.

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As it can be seen, the PSD plays an important role in any status appraisal of town planning and urban development in Spain. The situation has also caught the attention of the United Nations Organization. The UN Special Advisor on affordable housing, on request of affected parties, paid a visit to the country in 2006 and delivered negative conclusions on the housing, land development and town planning situation (2 December 2006).



3 Town Planning and Land Development in Spain: Basic Features 3.1 A Highly Regulated Activity

In order to understand the possible operational dimension of PSD in the Spanish legal system, it is important to underline that the use of land, land development and building are highly regulated activities in Spain. Town planning is an exclusive governmental activity, and is regulated by a complex group of long and detailed statutes and administrative norms. Every single land development process, every new real estate project, is supposed to be approved, planned, or foreseen under a controlling land use plan: from the framework master plan of the city (Plan General de Ordenación) to several detailed and precise “micro” plans for specific sections, parts or infrastructures of the city. In a nutshell, the land development process is not only “controlled” or “supervised” by governmental bodies and agencies, but the process itself is depicted as a public policy and even as a public function or activity (la función urbanística pública). This feature is very important for our dialectic purposes: the sustainability of the urbanization process in Spain is in a great part not just the result of private, economic factors, but the final outcome of administrative action (or inaction). What is more, the Government must ensure sustainability, on the ground of the Constitution and the laws on land use and town planning, as will be explained infra.



3.2 Allocation of Powers

Another key element of the Spanish scenario is that most responsibilities for town planning, land use management, real estate development and control of building activity belong to the local governments (towns and cities) and to the seventeen Regions (Comunidades Autónomas).

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Legislative powers on town planning and land use correspond exclusively to the Regions, not to the State (national Parliament).10 Consequently, there are seventeen groups of statutes and regulations on the matter, one for each region. A likely result of this constitutional allocation of powers is that it is possible to see differences among the several regions, in the sense that some regional laws and regulations may establish detailed and proactive prescriptions in favor of sustainable town planning and land use, while other may be more reluctant to do so or pay less attention to sustainability considerations. Although there is no substantive land use legislation at the national level, the State legislature may approve laws that cover “lateral aspects” of the urban process, such as the status of property rights, compensation for expropriation, regulation of land from civil law or equal access perspectives, etc.11 Executive powers in this domain are also vested in the local governments and in the Regions, and the national executive branch has no powers or competencies whatsoever. There is not even a national “Town Planning” Ministry or Agency.12 This means that the national government has no formal intervention in the town planning process, and that it cannot stop, preempt, paralyze, annul or suspend on grounds of expediency a new land use plan that has been duly approved by the competent bodies. The only remedy available to the State is to bring a lawsuit in the administrative courts against the plan if it infringes a legal rule or invades the competencies of national government. Towns and cities enjoy a high degree of autonomy, which gives them a huge room of discretion in the town planning process. Therefore, the “urban model” is basically defined by the local governments. Some categories of (small) land use plans are approved directly by the local governments alone, but General and Master Plans must be approved in the first place (preliminary approval) by the City Council and in a definitive manner by the regional government. In those cases, the Regions may introduce corrections (on grounds of legality but sometimes also of “hidden” expediency”) to the proposed plans. Finally, city councils “execute,” implement and enforce land use plans, laws and regulations, and deliver the necessary licenses and permits for subdivisions, real estate projects, and new buildings.

10

This doctrine has been consistently sustained by the Spanish constitutional courts in a series of decisions, the most important of which are decision number 61, of 1991, and decision number 164, of 2001.

11

In any case, the line dividing what is purely “town planning and land use law” (which is a regional competence) from all the other connected, lateral aspects (which may be regulated by the nation) is very murky and has been a legal battlefield for decades.

12

There is indeed a national Ministry on Housing (Ministerio de Vivienda) but is has not a single power, duty, competence or right of intervention whatsoever in town planning or land development, and for this reason its very institutional role or justification is controversial.

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4 The Environment versus Land Development, under the Law

Once we have introduced the environmental problem of intensive urban growth in Spain, we should check the reaction of the law. First, we explore whether Spanish law (especially constitutional law) recognizes explicitly or by implication the principle of sustainable development. And second, we identify the existing laws and regulations (both at the national and the regional level) that are based on the PSD, and what techniques and regulatory tools are supposed to fight the problem of unsustainable urban development.



4.1 Constitutional Recognition of the PSD

The Spanish Constitution of 1978 does not ignore the PSD. On the one hand, there are indeed some provisions on sustainability and environmental protection that are applicable to urban development. To be precise, the Constitution does not specifically use the wording “sustainable development”, but “rational use of natural resources” (utilización racional de los recursos naturales), which is rather close in meaning. Part I, Chapter 3 of the Spanish Constitution contains the so-called “Principles governing Economic and Social Policy,” which are guidelines and objectives to be achieved by the branches of government. In this part stands article 45, which says: 1. Everyone has the right to enjoy an environment suitable for the development of the person, as well as the duty to preserve it. 2.- The public authorities shall watch over a rational use of all natural resources with a view to protecting and improving the quality of life and preserving and restoring the environment, by relying on an indispensable collective solidarity.

On the other hand, article 47 states that “the public authorities shall ... regulate land use in accordance with the general interest in order to prevent speculation.” Sustainable development is then recognised as a “guiding principle” for governmental agencies, the political branches, and the courts, in the domain of town planning, land use, real estate development and housing. Despite that clear wording, these constitutional provisions are far from clear, operational or directly applicable by agencies and courts. The reason is twofold: first, under legal philosophy considerations, it is very difficult for those vague constitutional prescriptions to be directly operational mandates; second, from the positivistic perspective, the Spanish Constitution itself expressly excludes the direct applicability of the principles included in that chapter. Article 53 (3rd indent) of the Constitution establishes that

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the Recognition, respect and protection of the principles recognized in Chapter 3 shall guide legislation, judicial practice and the actions of the public authorities. They may only be invoked before the ordinary courts in accordance with the legal provisions implementing them.

In conclusion, neither article 45 nor 47 may be directly claimed in courts or used as the only or sole legal argument to challenge governmental action, since they are mere “inspiring principles.” However, once those principles have been enshrined in positive law (statutes and administrative regulations), the courts may apply them to control the legality of governmental action (as we will see infra). In any case, courts may use the PSD, which is embodied in article 45.2 of the Constitution as a hermeneutic direction, when they are asked to adjudicate murky or complex litigation where statutory construction is unclear and sustainability considerations may play an important role.



4.2 The PSD in the Legislation on Town Planning and Land-use

Recognition of the PSD in “positive” law is a crucial element to support the likely operationalisation of the said principle, especially when the written norms are addressed to governmental agencies and bodies. In this sense, an important (albeit fragmented) legislative attempt has been made in Spain in the last years to mitigate the pattern of accelerated urban growth. In the wake of the social and political preoccupation with this problem, new laws and regulations governing the urban process have been approved, some of them determined by EC directives. In this new legislative context, sustainable development plays a key role. The PSD has slowly entered the arena of land use law since the late Nineties, and nowadays is generally proclaimed as the founding principle in the field of urbanism, both in the national and regional legislation on the matter. For what concerns the (reduced) national legislation on the subject, a first mention must be made to the Law of Land of 1992 (now abrogated), which claimed at article 9.2 that public authorities and bodies should ensure the “rational use of soil.” However, the need for sustainable use of land has been dramatically stressed by the now-in-force Act on Land of 28 May, 2007.13 This new statute was approved in the wake of the national concern over the uncon-

13

Ley 8/2007, de 28 de mayo, de suelo. This statute was published in the national Official Journal (Boletín Oficial del Estado) of 29 May, 2007. The electronic version of the statute (in Spanish) may be retrieved at the website of such gazette : www.boe.es.

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trolled urban development and is specifically informed by sustainability considerations.14 It is applicable in the whole country, and binds regional law.15 This piece of legislation establishes clearly the principle of sustainable development as applied to town planning and land development, and stresses the need for “sustainable urban growth” (crecimiento urbanístico sostenible). In its explanatory memorandum, this statute states that, in future, urban growth must comply with the requirements of sustainable development (paragraph I). In its articulated text, sustainability considerations are mentioned repeatedly in several articles, which are mainly addressed to the administrative bodies and agencies having the main responsibilities in town planning and land use (the local units and the regions, as explained supra): • article 2.1 states that all the (public) policies concerning the regulation, transformation and occupation of the land must ensure the use of this resource in the general interest and in accordance with the principle of sustainable development; • article 2.2 establishes that, by virtue of the principle of sustainable development, the (public) policies referred to in the precedent article must ensure the rational use of all natural resources and the conciliation of the requirements of the economy, the employment and the protection of the environment (among other factors); • article 10c lays down some general principles, which in our view are too vague to be directly applicable. For instance, it states that the agencies and governmental units having competences in the domain of land use policy and town planning must pay attention to the principle of prevention and protection against pollution, among others; • finally, article 15 establishes some provisions that have a procedural character and which in our view may be more directly applicable. In the first paragraph, this provision states that land use plans are subject to environmental impact assessment (EIA), but it should be remarked that that obligation was already in force by virtue of the national Act 9/2006, of 28 April 2006, which transposed EC Directive 2001/42, on “Strategic” EIA (for plans and programs). As a new requirement in the planning process, the 2007 Act on Land states that every new proposal of a land use plan must include a map of risks of natural disasters (mainly floods and fires). This article also requires that, before the plan may be approved, several previous reports must be issued by different (environmental) agencies. For instance, the competent water authority must issue a report on the availability of water supply for the expected land developments and on the 14

Another legislative proposal (now discussed in Parliament) explicitly includes the word “sustainable development” in its title (Ley sobre desarrollo sostenible de las áreas rurales, “Act on the sustainable development of rural areas”), something that has never happened before in Spain. However, this proposed legislation has no direct implications in the area of land use and land development.

15

For a general analysis of this statute, see: Alfonso and Roger (2007).

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protection of the water environment (depuration of residual waters, planning of appropriate environmental infrastructures, etc.). And the coastal management agency must deliver another report on the protection of the coastline, something which means in reality that the coastal agency must ensure that no new land developments take place in the fringe of land protected by the Act on Coastal areas (see, infra). The final and practical results of these provisions remain to be seen in the future. In terms of a preliminary appraisal of this new national statute it could be said that, on the one hand it is – no doubt about it – a radical improvement of the traditional Spanish law on town planning and land use, which has traditionally ignored sustainable development considerations. On the other, the 2007 Act on Land is not very clear or operational in its wording, at least as far as it concerns the PSD as applied to urbanism. So although the law stresses the need to follow the requirements of that principle, it does not provide a clear, substantive definition of it. The main reason is that the main legislative competences in this domain belong to the Autonomous Regions, as explained supra (section 2.2 above). It is clear that the national legislature wanted to put its grain of sand in the building of a real law on sustainable land development, but was seriously hampered by the case law of the constitutional court and was aware that it could not go much further.16 The result is that the wording, in our view, lacks the necessary teeth to be directly applied by agencies and local governments, except those provisions which are clearly of a procedural nature. As a matter of fact, actual sustainable land development is still (and will continue to be) determined by the regional, not the national, law. In the regional legislation on town planning and land use there are also several pieces of legislation that invoke the PSD, that is to say, they declare themselves to be inspired by that principle. This is a new example of the fertility of the principle in an attempt to reconcile town and city growth with sustainable development. Just in order to provide some examples of what is a general trend, we may cite the following laws: a) in the Region of Castilla and León, the Act of 8 April 199917 makes an explicit reference to the PSD as a target to be achieved and as an inspiring principle of the statute (explanatory memorandum, paragraph II). What is more, article 4 (b) states that the public activity in urban and land development will try to achieve a number of objectives, namely “to establish a town planning for the towns and cities of Castilla and León that will

16

In the Summer of 2007, the opposition party filed an appeal before the Constitutional Court, claiming that this statute was unconstitutional because it impinged upon the competencies of the autonomous regions in the domain of town planning, housing and land development.

17

Ley 5/1999, de 8 de abril, de urbanismo de Castilla y León.

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advance its balanced and sustainable development;”18 b) in the Region of Valencia, the Act of 30 December 2005,19 on town planning and land use, refers consistently to the paradigm of sustainability in its explanatory memorandum and establishes that the whole governmental activity in this field “will target the protection of the environment and the advancement of sustainable development.”20 Interestingly, the Act also regulates what it calls “guidelines on sustainability,” criteria and objectives to be followed and respected by any land use plan initially approved by the towns and cities of the region. Those plans can only be approved by the Region if it is clear that those guidelines have been followed and that the model of land development does not exhaust the available natural resources; c) finally, in the Region of Catalonia, the Decree of 26 July 200521 goes even further and introduces explicitly the legal concept of “sustainable urban development” (desarrollo urbanístico sostenible) at article 3. As seen before, the PSD is widely enshrined in the new Spanish law on town planning and land use. However, it remains to be seen whether this “sustainability enthusiasm” is mere lip service or will be an effective remedy to combat the current pattern of uncontrolled urban growth.



4.3 Environmental Conditioning of Land Use and Building Activity

It is natural to think that there is a “clash” or tension between land development and the protection of the environment, since the first may undermine the latter. In our view, this conflict of constitutional values (what is more valuable?, which one must be favored by the government?) is resolved in Spain in the sense that, as a rule, land development is subordinated to environmental protection ( at least theoretically or under the law). One can easily arrive at this conclusion by performing an overall analysis of the most important domestic laws and regulations on the protection of the environment, since most of them impose restrictions, limitations or even outright bans on land development and building activity. A selection of the most important norms should include the following items:

18

Free translation by the author.

19

Ley 16/2005, de 30 de diciembre, urbanística valenciana.

20 21

Article 4, c. Free translation by the author.

Decreto Legislativo 1/2005, de 26 de julio, sobre texto refundido de la Ley Urbanística de Cataluña.

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4.3.1 Preservation of Watercourses and the Coastal Area

Spanish national legislation on the basic natural resources (watercourses, coastline) prohibits land development or building activity in specific areas or fringes of land. Of course, land development and building is strictly forbidden in (dry) riverbeds or lakebeds, on beaches and in other areas which constitute the eminent domain (dominio público). But those prohibitions and limitations also extend to the adjacent private slots of land. From the legal point of view, such limitations on (private) property are characterized as “easements” or “servitudes” and do not give right to compensation. Thus, the Waters Act of 200122 forbids any land development or building activity within a 5 meter zone adjacent to the watercourses. Similarly, the Coastal Protection Act of 1988 also bans land development or building within 100 meters of the beaches and public shoreline. Unfortunately, these limitations and prohibitions have not always been enforced and respected by the governmental bodies and administrative agencies responsible for town planning and land development. Sadly enough, Spain’s coastal areas have plenty of illegal or “irregular” buildings and real estate projects. In 2005, the national Ministry of the Environment started a program for the expropriation and (were possible) demolition of those constructions, but huge monetary compensations must be paid and quite often litigation between the government and private owners is protracted and paralyses administrative action.



4.3.2 Nature Conservation

In the domain of nature conservation, environmental protection values can be seen to prevail over land development, at least in the book of laws. According to the main national statute on nature conservation, passed in 1989 and amended several times,23 the most important preserved areas, called “Parques” (protected parks) must be managed and preserved on the basis of a complex set of planning documents,24 which may involve the territory of several cities or towns. Those documents determine and regulate in a highly precise manner all human and economic activity having a direct or indirect impact on those areas, and of course land development and building do not escape from that “environmental” planning. The Act establishes clearly that a conservation plan which has been approved for a protected area prevails over any land development plans or real estate projects. In practical terms, it means that the local governments affected by 22 23

Real Decreto Legislativo 1/2001, de 20 de julio, Ley de Aguas.

Ley 4/1989, de 27 de marzo, de conservación de espacios naturales y de la fauna y flora silvestres.

24

Those documents are basically two: the P.O.R.N (Plan de Ordenación de Recursos Naturales) and the P.R.U.G (Plan rector de uso y gestión).

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those conservation and management plans cannot approve land use plans or real estate projects which run contrary to them. In that case, the land development plan is illegal and could be annulled by the administrative courts. As for preexisting land use plans, the law states that they must be amended or rectified in due time and manner, but legal, existing or in-progress buildings and developments are respected.



4.3.3 Noise Control and Air Pollution

The national legislation on the prevention and control of ambient noise makes reference to the relation between the policies on noise reduction and town planning. The key national rule in the field is the Act of 17 November 2003, which is the result of transposing EC Directive 2002/49. This statute obliges the local governments of large municipalities to perform a sort of “acoustic” zoning, and to elaborate “noise management plans” whose provisions and determinations will prevail over municipal land use plans.25 On the other hand, a draft national law on air quality would condition urban growth in noisy areas. Under the new Act, big cities will be obliged to draft air pollution management plans, whose determinations would also guide local land use plans



4.3.4 Building Regulation

A new national regulation (Royal Decree of 17 march 2006), in force since September 2006, establishes a complex set of detailed, technical and architectural requirements for any new construction, house or apartment building. In particular, new homes must now have panels for solar energy and must comply with minimum requirements on noise isolation and energy efficiency.



4.3.5 Landscape Protection

The protection of landscape is also slowly entering the arena of traditional town planning and constitutes a new limitation and a new consideration in the decision making process. For instance, in the Region of Valencia, the Act of 30 June 200426 on spatial planning and landscape protection makes frequent reference to the PSD as an inspiring principle for town planning. What is more, article 2.3.b clearly states that the spatial planning activity of the regional government shall be based, among others things, on the principle of rational use of the natural resources and the protection of landscape.

25

This Act of Parliament was supplemented by Royal Decree 1367/2007, of 19 October 2007, which sets precise rules and technical annexes for the implementation of the Act.

26

Ley 4/2004, de 30 de junio, de ordenación del territorio y protección del paisaje de la Comunidad Valenciana.

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4.3.6 Spatial Planning

Spatial planning is a very important administrative activity and area of public policy in Spain. Basically, it consists of the same governmental techniques as town planning, but the territorial scale is larger (usually the whole territory of the region) and the documents produced (called plans or guidelines) are not as detailed or binding as genuine municipal land use plans. All the powers in this domain belong also to the autonomous regions. Consequently all autonomous regions have approved laws on spatial planning, and most have also approved specific “plans” or “spatial guidelines” for the total or partial territory of the Region, which prevail over local land use plans and are usually inspired by the PSD. From the perspective of sustainable development, the most important feature of those regional plans is that they often establish restrictions, limits or “ratios” on urban growth, which must be respected by towns and cities when they elaborate new land use plans and real estate projects. The most striking example is the autonomous community of the Balearic Islands, a region where the perception of land as a limited resource is especially acute, having one of the wildest records of land development and uncontrolled building in the country, driven by a strong tourist demand. There, spatial planning is performed both by the region and by each island by means of very detailed planning documents. Thus, the noticeable Act of 3 April 199927 approved detailed “guidelines on spatial planning” (directrices de ordenación territorial) for the whole archipelago. The Act sets a precise limit on the “ration” or pace of urban growth (around 10 percent of existing urbanized land) that may be approved in each island during a certain time span (ten years). Despite its name, these “guidelines” are mandatory on local governments. In addition to regional spatial planning, each Balearic island has powers to perform also spatial planning, at the insular scale, and produce spatial plans. Those plans are strongly informed by sustainability considerations. A good example is the insular plan of the island of Menorca, whose very title is “Menorca, a sustainable spatial project” (Menorca, un projecte territorial sostenible), and was approved in 2003. This plan establishes a precise plan of urban growth in the island, with specific ceilings and limits, based on sustainability. For instance, the plan states that, within ten years after its entry into force, the total new land that can be developed or prepared for construction may not exceed the equivalent for 10,479 new residents, which is estimated at 439 hectares. The key point is that the plan is also binding upon the local governments of the island, so that any land use plan, real estate project or subdivision which is approved by a city council in violation of those insular plans may be annulled by the courts on the ground of illegality, or may not obtain the final approval of the regional government. 27

Ley 6/1999, de 3 de abril, de Directrices de Ordenación Territorial de las Illes Balears.

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4.3.7 Environmental Impact Assessment for Land Use Plans

Another important aspect for ensuring the real “subordination” of town planning and land development to the requirements of environmental protection is the previous assessment of the environmental impact of draft land use plans and proposed real estate projects. Until recently, there was no national legislation requiring environmental impact assessment of land use plans in Spain, although many Autonomous Regions had already introduced this requirement in their statutes on town planning and land use.28 This gap was filled at the national level by the Act of 28 April 2006,29 a new statute which – as mentioned supra – is the result of the transposition of the EC’s “Strategic” EIA Directive of 2001. This piece of legislation requires now that every land use plan must undergo a “strategic” EIA, a procedure where substantive sustainability standards play a significant role. If a plan or a project is approved without such EIA, it may be declared illegal and annulled by the courts (see, infra, section 4.2).



5 The Enforcement Gap



5.1 Administrative Tolerance and Inaction as a Major Shortcoming; The Social Context

Now given that sustainable town planning and land use are ensured in Spain in the law, as indicated in the foregoing paragraphs, one may wonder why the real situation is so very different. Maybe the most important reason is the behavior of those governmental agencies and bodies that are responsible for town planning and land management. If, as explained in section 2.1 supra, the whole urban process is regulated, determined and controlled by the government, it is then possible to say that the local governments and the Regions are ultimately responsible for the final urban situation of a given town or area. But why is that? The answer is complex and has many ingredients. First of all, the “wild” pattern of urban growth has taken place mostly before the introduction of the new laws and regulations that stress the need for sustainability (one example being the national Act on Land of 2007), most of which were discussed above. Second, although the principle of sustainable development is recognized by the law, it is weakly implemented by the competent administrative agencies, at the local and regional level. The range of possible situations is ample. In some cases, a group of buildings or an entire real estate project may be patently 28

The Autonomous Region of Valencia introduced this instrument in 1989, the Region of Murcia in 1995, etc.

29

Ley 9/2006, de 26 de abril, sobre evaluación de los efectos de determinados planes y programas en el medio ambiente.

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illegal because it was built without the necessary permits, but instead of taking remedial action, the city council, mayor or regional government tolerates the situation, either because people are living there already,30 or because a law-suit on the legality of the project has been pending for years, or just because of political “interference.” In another likely case, a given development project may have all the necessary permits required by the law, but they may have been awarded in violation of the law without anybody suing the responsible agency. Of course, this scenario is often enriched with criminal implications (bribes, administrative corruption, etc.). The combination of private and public interests creates a veil of silence. This administrative tolerance, inaction or open complicity is, again, the cumulative result of a set of causes of legal, economic and sociological nature. One legal and economic explanation of the situation comes not from the side of environmental protection, but local finances. As a rule, local governments do favor intensive urbanization because it is an important source of income. Local governments usually expropriate “rural” land, transform it into “urban” land under the local land use plan, and sell the resulting plots of “urbanized” land to private developers at public auction. On the other hand, local government usually favors urban growth because it means an increase in local population, and local governments in Spain are mainly financed on the basis of subsidies and transfers from the national, State budget. Those subsidies depend mainly on the number of inhabitants of the city: the more inhabitants, the more money the city is supposed to receive from the state budget. The sociological element is the weak involvement of the population during the planning process, and the little willingness of the people at large to fight against “unsustainable” land use plans or real estate projects. In Spain, land use plans must go through a detailed administrative procedure, and one unavoidable step is the public hearing. One would think that the local population would demand “ecological” land use plans and development projects. Unfortunately, this procedural moment is by no means a guarantee for the appropriate weighing of environmental considerations within the town planning process. The level of environmental awareness is not very high as compared to other countries, and Spaniards are usually reluctant to get involved in public consultation processes (maybe for realistic reasons). In practice, public consultations usually result in demands for more housing, not in endorsements of ecological 30

In Spain, the “cañadas reales” are ancient “royal cattle tracks” that cross several Spanish provinces and as ecological paths (Ley de vías pecuarias) are protected by a specific statute in environmental law. Theoretically, no land may be developed or building set up on those “royal cattle-tracks,” which are 75 meters wide. The “Cañada Real Galiana” it one such protected “cañadas”, and crosses the province of Madrid, among others. However, just 20 km to the south-east of the very center of the city of Madrid is a massive development of illegal homes, built decades ago on the land belonging to this cattle track, and tolerated by the local and regional governments. It is estimated that some 30,000 people live in this illegal settlement.

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constraints on the pace of development. The pressure in favor of more buildings and more houses come from three directions: the land developers and building companies of course, but also the home seekers ... and, not least, homeowners, who envisage new speculation possibilities with every new land use plan.31 In this context, the role of NGOs becomes seldom “unpopular,” especially when they try to stop the approval of a local land use plan that would have a negative environmental impact, or when they challenge the plan in the administrative courts. Indeed, they are frequently perceived as the ”bad guy” of the story, someone intent on “spilling the beans,” instead of standing shoulder to shoulder with the popular interest. In many places, environmental NGOs work under heavy pressure of the real estate business.



5.2 Operationalisation of the PSD in Courts

The question of whether any given principle is really an operational one or not depends largely on the possibility of claiming it in lawsuits, and the ability of courts to use it as a legal argument to decide cases and appeals. In general, sustainable development considerations are slowly entering the judicial arena in Spain during the last decade. For instance, the decision of the Supreme Court of 31 March 1998, concerning the inclusion of a wetland on the list of the Ramsar Convention, gave an important room for the PSD in its main considerations. From that perspective, it would be important to determine the legal nature of the PSD in Spanish land use law, and see whether the courts are actually applying it, and under which conditions. Of course, a Spanish court cannot apply directly the Rio Declaration or the Brundtland report as the sole argument to strike down a land use plan or to paralyze a real estate project. What is more, and as explained in section 3.1 above, that court could not rely exclusively on articles 45–47 of the Constitution for that purpose either. However, a closer look at the question may reveal other perspectives. To begin with, it is important to note that, in Spain, land use law is part of administrative law. Thus, decisions made by planning agencies during the urban process may be rationalized under the general perspective of administrative law; the courts with the competence to scrutinize those decisions are the administrative courts32 and the scope of judicial review is determined by the 1998 Act on judicial control of administrative agencies (Ley de la Jurisdicción Contencioso-Administrativa). 31

The profits generated over the last ten years for private investors by this impressively skyrocketing urbanism “bubble” are so high that the real estate market has taken the place of the stock market as the natural destination of family savings, transforming many regular citizens into fierce speculators.

32

Like many countries of “continental” tradition, the courts system in Spain is divided among several “autonomous” or “specialized” jurisdictions: the Administrative Courts ( jurisdicción contencioso-administrativa) have the competence to analyze the legality of agency action or inaction.

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As explained above, laws and regulations on town planning and land use, as well as those on environmental protection, impose on the planning agencies the duty to ensure “sustainability,” or “sustainable land use development.” They might even state explicitly that public policy on land use must ensure sustainable development. Many do impose procedural requirements for ensuring “sustainability” of the land development process (like the obligation to perform a strategic EIA, or to obtain reports from the water management agency or other environmental authorities). What is more, some rules or spatial plans impose “empirical” restrictions or limitations on the rate of land development (for instance in the Balearic Islands). Lawsuits against municipal land use plans are often filed on grounds of illegality. The plaintiff (usually an NGO) claims the city council has violated a specific statute or administrative regulation which is a concretization of the PSD. In this context, what is the actual power of administrative courts to apply the said principle? First, administrative courts may declare illegal and void land use plans which infringe laws and regulations which represent a “procedural” crystallization of the PSD. For instance, administrative courts may strike down plans or real estate projects that have been approved without performing a strategic EIA as required by the law, or neglecting the “environmental” reports required by the law. Several successful cases may be cited here. a) In 1996, the regional government of Murcia (in the south-east of the country) approved the modification of the “master” plan of the city of Cartagena, on request of the city council. The new plan envisaged the development of 469 hectares of land, some of which belonged to a protected site. No EIA was performed, as required by the law. For that main reason, a local NGO (“Anse”) filed a lawsuit against the plan, and the High Court of Murcia declared illegal and void the approval decisions.33 b) In another well-known case, n San Vicente de la Barquera, a city in the region of Cantabria (in the north of the country). a big land development project (which affected a natural, protected site in a negative way) was approved by the city council and regional government. A local NGO (“Arca”) filed a lawsuit before the High Court of Cantabria against the project, because it violated the Act on Coastal Protection (the project involved several shoreline buildings) and because the plan foresaw a disproportionate urban population growth (2,121 new inhabitants in a town with an existing population of 5,900). The administrative court upheld the claim, and declared illegal the plan and the project involved.34

33

Decision of the Administrative Chamber of the High Court of Murcia of 29 September 2000 (appeal number 437/1997).

34

Decision of the Administrative Chamber of the High Court of Cantabria of 22 November 2002.

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The city council appealed before the Supreme Court, which the dismissed the appeal and upheld the decision of the lower court.35 c) Finally, the planning commission of Valencia (a region on the Mediterranean coast, in the east of the country), approved in 2006 a real estate project promoted by a major Spanish football club. By interim order, the High Court of Valencia decided to suspend the implementation of that project, because there was no evidence on the availability of water supply, and the water management authority had elaborated a negative report on the project.36 d) For what concerns “international” judgments in this area, Spain itself, as a member state of the EU, was condemned by the ECJ in 2006 because a major real estate project was approved and built in Paterna (in the Region of Valencia) without an EIA, then in violation of EC Directive 85/337.37 Second administrative courts may also declare illegal those plans that have been drafted or approved in violation of substantive standards or limits on urban growth, established by laws and regulations of by binding spatial planning. In this case we see a judicial implementation of the “substantive dimension” of the PSD, which inspired those standards and limits. The hardest question, however, is whether a court may strike down a land use plan because it foresees “unsustainable” growth or employs an unsustainable model, when regional law on town planning and land use sets the objective and the goal of achieving or respecting “sustainable (land) development,” but does not lay down precise “procedural” or “substantive” sustainability requirements for the approval of a land use plan. This is the most difficult question because in the context of a likely appeal against a land use plan considered to be “unsustainable” (for instance because it foresees disproportionate urban growth or negative environmental impact), the court will not be able to use concrete, regulatory standards or references, as in the cases explained above. To answer this question it is important to note that in Spain, depending upon the scope of judicial review, administrative agencies may take different types of decisions. Roughly, and with an approximate English translation, those decisions may be either “fully determined by the law” (regladas), “discretionary” (discrecionales) or decisions that implement “legally undetermined concepts” (conceptos jurídicos indeterminados). In our view, “sustainable (land) development” is such a “legally undetermined concept,” which means that administrative agencies have a certain room for discretion in determining what is “sustainable” or not, but the courts may control the actual content of the decision and decide whether the final result is reasonable or not. This means that, in the absence of precise “procedural” or “substantive” standards on sustainability established by regional land use law, the courts will not be able to strike down a plan on “non-sustainability” grounds, as long as 35

Decision of the Administrative Chamber of the Supreme Court of Spain of 28 June 2006.

36 37

Interim Order of the Administrative Chamber of the High Court of Valencia, of 3 February 2007.

Case C-332/04 Commission v. Spain (2006) ECR I-40.

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it is clear in the file that the planning agency took the PSD into consideration. But it also leaves the door open for judicial review on the actual content of the agency decision in, so to say, “extreme cases,” when the land use plan is clearly “unsustainable” and the decision of the planning agency may be understood to be “unreasonable.” The legal justification for that judicial determination will be that the planning agency infringed the provision of national and regional land use law which states that land development should be sustainable, or that the local and regional land policies must ensure sustainable land development. The case that probably best illustrates this hypothetical scenario took place in Parcent, a beautiful little town in the province of Alicante, in the Region of Valencia. There, the city council approved in January 2006 a massive land development project, which, inter alia, would involve building 1500 new homes in this quiet and tiny village, whose permanent population is around 1,000 inhabitants. Several citizens brought a lawsuit against that decision to the High Court of Valencia, which, by an interim order of 3 November 2006, stopped the implementation of the plan. Among the considerations of the court, the judge stated that the development planned was too abrupt and excessive, and that not enough consideration had been given to the requirements of sustainable development. The city council appealed the interim order, but it was confirmed by final decision of the same court of 4 January 2007. In these decisions the court clearly looked to sustainable development arguments to support its findings. In a nutshell, the PSD is already producing successful results in town planning and land development litigation, and its relevance will grow in the future, in the wake of the new legal context.



6 Conclusions: Making the PSD an Operational Legal Rule

Common understandings and perceptions of PSD see it as pure “soft law,” a mere programmatic recommendation or wish, lacking any operational or directly binding consequences on the legal operators or social actors. This may be true if the principle were taken as a universal, passe-partout guideline. However, in our view, the PSD may become an operational “principle” if certain circumstances are met, as in the case of land use policy in Spain. 1. The PSD is applied to an area of economic activity that is heavily regulated (for instance, town planning and land us), and which is suitable to quantitative measurement. 2. The PSD is addressed to the executive branch of Government, to the administrative agencies, and is even a constitutional obligation upon public administration. It is a founding principle of governmental action and a pillar of a concrete public policy. Sustainable development becomes then the responsibility of the governmental action.

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3. The PSD crystallizes in statutes and regulations which establish powers, duties and obligations on the agencies, both “procedural” and “substantive”: on the one hand, the law establishes procedural steps to ensure that PSD is actually taken into consideration within the decision making process of the town planning agency. On the other hand, the law sets limits (“physical” or tangible limitations) to property rights or economic freedoms. For instance, the law establishes a multi-annual quantitative ceiling on urban growth, or bans building, subdividing or developing zones adjacent to the sea, even if the land is private property. 4. The establishment of those legal limits and prescriptions (both substantive and procedural) opens the door to the possible challenge of governmental action which is considered to allow or authorize an “unsustainable” urban project: if a governmental body (for instance, a local government) approves a land use plan or development that violates those legal mandates, the administrative courts may declare void and illegal the plan, the permit or the decision. Thus, the PSD enters the judicial arena and may be used by the courts to determine whether governmental action complies with it (via the “positive law”). 5. The side effect of this construction is that, for the PSD to be really effective, a strong enforcement activity is needed from the different layers of government and administrative bodies. Administrative tolerance, inaction or passivity – notwithstanding the existence of clear-cut laws and regulations – may trigger “unsustainable” incidents and results, like the ones seen in Spain over the last decade.

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Bibliography OSE (2006) Observatorio para la sostenibilidad en España (OSE), Informe sobre los cambios de ocupación del suelo en España : implicaciones para la sostenibilidad. 2006.

Jackson 2003 R.J. Jackson, “The impact of the built environment on health : an emerging field”, American Journal of Public Health, no. 93, September 2003, pp. 1382-1284.

Alfonso and Roger (2007) L. Parejo Alfonso and G. Roger, Comentarios a la Ley de Suelo, Iustel Publs., 2007.

Table of Cases • Decision of the Constitutional Court of Spain number 61, of 1991 • Decision of the Constitutional Court of Spain number 164, of 2001 • Decision of the Administrative Chamber of the Supreme Court of Spain of 31 March 1998. • Decision of the Administrative Chamber of the Supreme Court of Spain of 28 June 2006. • interim order of the Administrative Chamber of the High Court of Valencia of 3 November 2006. • Interim Order of the Administrative Chamber of the High Court of Valencia, of 3 February 2007. • Decision of the Administrative Chamber of the Higher Court of Valencia of 4 January 2007. • Decision of the Administrative Chamber of the High Court of Murcia of 29 September 2000 (appeal number 437/1997). • Decision of the Administrative Chamber of the High Court of Cantabria of 22 November 2002. • Case C-332/04 Commission v. Spain (2006) ECR I-40.

Legislation • Ley 8/2007, de 28 de mayo, de suelo. • Ley 5/1999, de 8 de abril, de urbanismo de Castilla y León. • Ley 16/2005, de 30 de diciembre, urbanística valenciana. • Decreto Legislativo 1/2005, de 26 de julio, sobre texto refundido de la Ley Urbanística de Cataluña. • Real Decreto Legislativo 1/2001, de 20 de julio, de Aguas. • Ley 4/1989, de 27 de marzo, de conservación de espacios naturales y de la fauna y flora silvestres. • Ley 4/2004, de 30 de junio, de ordenación del territorio y protección del paisaje de la Comunidad Valenciana.

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• Ley 6/1999, de 3 de abril, de Directrices de Ordenación Territorial de las Illes Balears. • Ley 9/2006, de 26 de abril, sobre evaluación de los efectos de determinados planes y programas en el medio ambiente.

Abbreviations EC ECJ EIA GDP PSD UN

European Community Court of Justice of the European Community Environmental Impact Assessment Gross Domestic Product Principle of Sustainable Development United Nations

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A Sustainable Criminal Law – Criminal Law for Sustainability Eva Westerlund

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a sustainable criminal law – criminal law for sustainability

1 Introduction

I discuss here the relationship between sustainable development and criminal law. Environmental law has become a discipline in its own right from previously being part of civil law, administrative law and other disciplines. Environmental law has also gone from solving fairly easy conflicts (noise, smoke etc,) between neighbouring landowners to managing complicated global problems like climate change. In the former cases, damages could, at least to some extent, be repaired, observed and predicted. In the latter, large regions are often affected and sometimes the entire globe. Ecological effects are scientifically hard to predict both as to consequences and extension. These problems concern not just our own generation but future generations as well. Sustainable development coupled with a precautionary approach is therefore necessary and have become new subjects in environmental law and policymaking. Sustainable development used as a principle, or perhaps even more sustainability considerations, implies a change of perspective in environmental law and policy towards tackling environmental problems. Focus has shifted from a curative approach via a preventive approach towards an anticipatory approach. The two latter approaches are both related to a need to predict and prevent different types of environmental risks.  The question is whether there is evidence of a change of perspective in environmental criminal law. Criminal law has to some extent also gone from damage control to risk prevention. Criminal law tends nowadays largely to control dangerous behaviour. The argument for criminalization often relies on ideas of unaccepted risk while endangerment criminalisation takes the place of criminalization founded on violations of specific values or interests and resulting damage. It is more and more about objective risks rather than subjective blame. This is an interesting observation; the two disciplines are moving in the same direction which ought to be positive if you want to use criminal law to protect the environment. Still, environmental law and criminal law are based on partly incompatible legal principles and concepts and some of the general differences between these two legal fields cause problems for the application of existing environmental criminal provisions. The problems would be even more daunting if the criminal provisions were interpreted or written in a manner compatible with sustainability. Or is it perhaps the other way around? Could the principle of sustainable *

 Eva Westerlund is doctoral student at the Luleå University of Technology, Sweden. 

For further reading see, for instance, Michanek and Zetterberg (2004) 67-83; Bell and McGillivray (2006) 20-31.

 

Richardson and Wood (2006) 1-19:

de Sadeleer (2002) 14-19; Bell and McGillivray (2006) 33-39.

 

de Sadeleer (2002) 15-19.

Takala (1995); Nuotio (1991) and (1998).

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development help overcome some of the differences between criminal law and environmental law and bring the two legal disciplines closer together? A basic comparison of environmental law and criminal law in relation to environmental problems is highly revealing: • criminal law has a clear here and now perspective with a focus on welldefined harm caused to an individual victim, both of which are much more diffuse in environmental law, including for instance actual or potential damage to human health or ecosystem, among present and future generations; • criminal law is an old legal discipline and it relies heavily on principles like legal certainty. This principle requires legal rules to be “fixed, knowable and certain”. By contrast, environmental law is a fairly new discipline, and still developing its own principles. Environmental law is often expressed in much vaguer language and in terms of balancing rules which give courts and public authorities interpretative leeway, and opportunity to take different – sometimes non-environmental – interests, , into consideration before making a decision; • criminal law demands an obvious connection between a particular activity and the effect; it must be proven that a certain act has had a certain effect. By contrast, environmental law deals with situations characterized by scientific uncertainty, non-linearity and complexity. One very specific feature of environmental law is its relation to the ecosystem. Being the recipient of human waste and other harmful substances, the ecosystem often reacts unpredictably. Unknown synergistic effects and ecological thresholds are two examples. Due to this complexity and the uncertainties about how nature will react to a certain action or measure, it is difficult to state beforehand what should be avoided, what to prohibit and to formulate criminal rules that protect the environment as such. Even in cases and situations where it is known that a certain discharge or use of natural resources can harm the environment, they might be allowed because they are necessary for our way of living. This makes it hard to regulate environmental matters with criminal law. Driving cars is a good example. It depletes oil reserves, oil being a non-renewable natural resource, and emits climate changing carbon dioxide into the atmosphere. If one permits activities that are unsustainable, like driving cars, it could be difficult to argue credibly in favour of rules that prohibit other activities with the same kind of impact. This is a question of legitimacy of criminal environmental law. Assume that a license is granted, allowing a factory to discharge a certain amount of a pollutant into a river. Such a license would probably reflect the application of the “general rules of consideration” (a sort of substantive environmental requirement) in the code to the case in hand, and provisions which 

Ashworth (2006) 68.

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balance environmental protection against job opportunities, and the need for trade and industry in a region. If regional interests are considered important, and this is reflected in relatively generous license terms, it could be difficult to argue that the same or even a smaller discharge of the same pollutant by someone else is a criminal offence. Indeed, environmental crimes might not be considered ‘real crimes’ or criminal in any ‘real’ sense. Criminal law may not therefore be such a good instrument for dealing with environmental problems, mainly due to the differences between the disciplines described above. But it could also be argued that it has an important role to play as part of the environmental law chain (see below). Although there are differences between environmental law and criminal law there is also one important similarity. Both are concerned with how to regulate potentially dangerous behaviour. This has special importance for the possibility to make criminal sanctions for crimes against the environment. Harmonising environmental and criminal law would be valuable to both the wording of the legal text and the application of its provisions in practice A sustainability perspective in environmental criminal law could be implemented in different ways. One way could be to let the principle of sustainable development influence the application of existing criminal rules more than is the case today by interpreting the existing rules in conformity with what is considered to be needed for achieving sustainable development. Another way could be to use the principle of sustainable development as a starting point for a revised understanding of environmental criminal law and let sustainability ideas inform a revision of criminal provisions in a more environmentally oriented way. But would it be feasible to let a principle as vague as sustainable development influence criminal law?



2 Sustainable Development and its Relation to the Precautionary Principle

Sustainable development is a central principle in environmental law. It can be understood to be about striving to avoid whatever promotes unsustainable development. Due to the fact that it in just one sentence10 expresses so much it is not an easy concept to understand or to use. I will not try to describe or analyse its meaning or all aspects of it, nor will I discuss its legal



Bell and McGillivray (2006) 281-282.



See for instance. Träskman (2002) and Gröning (2004).



Prop 05/06:182 p. 57.

10

World Commission on Environment and Development (1987) Our common future “Development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”

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status as such either nationally or internationally.11 Instead I will focus on how it can be used in connection to environmental criminal law. The principle of sustainable development expresses, among other things, behaviour towards the environment and our dependence on nature. It implies a long-term vision of the need to address the present situation and the present use of nature in order not to jeopardize the possibility of future generations to use natural resources.12 We cannot act as we have done so far, as if resources were unlimited. Through wise use of the resources we must instead ensure that they are sufficient for the present as well as for future generations. We must also prevent renewable resources (e.g. water) from being deteriorated and polluted; it is costly and a waste of energy to clean up polluted resources. The principle of sustainable development is closely linked to and can be said to be further developed and expressed by the precautionary principle. Within the principle of sustainable development lies an understanding of the fact that there are scientific uncertainties about how different actions impact the ecological balance, so we need to be careful in our actions if sustainable development is to be reached. Sustainable development calls for precaution and precaution can be understood as a requirement not to expose nature to danger. The precautionary principle states that the absence of scientific certainty as to the existence or the extent of a risk should not delay the adoption of preventive measures to protect the environment. This is a challenge to conventional science as well as to traditional legal system given their need for certainty.13 The precautionary principle is a response to limitations of science in dealing with complex and uncertain ecological risks.14 Sustainability considerations and the precautionary principle could perhaps be used in connection to environmental crimes. For instance, in cases concerning endangerment crimes, the precautionary principle could lead a judge to be “more severe with defendants who did not bother to explore all the possible consequences of their acts and might thereby have exposed society to clear risks”.15



3 Sustainable Development in the Swedish Environmental Code

Sustainable development is the all-embracing and paramount goal of Swedish environmental law in general. This fundamental purpose is 11

See for instance Bell and McGillivray (2006) 62-69 and Birnie and Boyle (2002) 44-47 and 84-97 and Westerlund (1997) 23-42.

12 13

de Sadeleer (2002) 373.

de Sadeleer (2007) 3-4.

14 15

de Sadeleer (2007) 15.

de Sadeleer (2002) 339.

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expressed in the first provision of the Environmental Code, to “promote sustainable development which will assure a healthy and sound environment for present and future generations … based on recognition of the fact that nature is worthy of protection”. This implies that the Environmental Code should be applied in such a way that the goals specified in the first provision are reached. One of these goals is to ensure that “human health and the environment are protected against damage and detriment, whether caused by pollutants or other impacts”.16 This objective provision is complemented by general rules of consideration such as the precautionary principle.17 Sustainable development is to be reached through the application of the code’s provisions in their entirety. The provisions in the code can be described as a chain of different legal instruments of which criminal law is one part. The preparatory works to the Environmental Code emphasise the dependency of efficient environmental regulation on each and every link working in a clear and consistent manner.18 For enforcement of environmental law it is important that all parts of the chain work together in harmony, counterproductive functions must be avoided, otherwise there will be an implementation deficit.19 In view of a sustainability perspective, the role of criminal law is to enforce behaviour that promotes the achievement of the sustainability objective, or basically Sustainable development – the overall objective ¦ Sub-objectives e.g. protection of water quality ¦ Substantial environmental requirements ¦ Licensing, plans, limit values and other instruments to implement substantial requirements ¦ Supervision + criminal provisions and other enforcement mechanisms.

There is clear support in the legal text, read in the context of the preparatory works, to consider sustainable development not only as a political declaration in the code.20 This basic environmental norm must be taken seriously by the courts in application of the code’s provisions in practice.21 It has also been argued that

16 17

Environmental Code (SFS 1998:808) chapter 1 section 1.

Environmental Code (SFS 1998:808) chapter 2 and for the precautionary principle chapter 2 section 3.

18

Prop. 97/98:45 Part 1 p. 169-170:

19

Westerlund (2003) 58-59, 63.

20 21

Prop 1997/98:45 and Prop 2005/06:108.

Lindblom (2000) 807.

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the principle of sustainable development should affect how the procedural rules are interpreted in environmental law cases.22 The precautionary principle is also expressed in the Environmental Code and it demands of “persons who pursue an activity or take a measure or intend to do so shall implement protective measures, comply with restrictions and take the precautions that are necessary in order to prevent hinder or combat damage or detriment to human health or the environment … such precautions shall be taken as there is cause to assume that an activity or measure may cause damage or detriment to human health or the environment.”23 This ought to work well together with criminal law rules which are about preventing damaging and dangerous behaviours. There is one provision of the environmental code that specifically criminalises lack of precaution. If chemical substances or bio technical organisms are handled with intent or by gross negligence, without proper preventive measures being taken and have caused or been likely to cause damage to humans or to the environment, such negligence is punishable.24 It is sensible to criminalize offences against the widely accepted precautionary principle, not least in the area of chemicals because the risk they represent to biological life is often very high indeed.25 How can criminal law be used in order to fulfil the goal of the Environmental Code to promote sustainable development?



4 To Protect the Environment Through Criminal Law

The purpose of criminal law is to control and regulate the actions of citizens and by doing so protect society’s most important values against harm and violation. It is up to the parliament of each country (except when international law or EC law occasionally imposes obligations related to criminal law) to decide which it considers important enough to deserve criminal protection. A recently adopted EC directive proposal states that all countries must implement criminal sanctions for certain environmental harmful activities such as for example “unlawful discharge of a quantity of material which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, water, animals or plants.”26 In these cases there should be 22 23

Lindblom (2000) 810.

Environmental Code (SFS 1998:808) chapter 2 section. 3 for discussion about the precautionary principle in Sweden see Michanek (2007) pp. 120-135.

24 25

Environmental Code (SFS 1998:808) chapter 29 section. 3.

Prop 2005/06:182 p. 78.

26

Article 3 a in the proposal for a directive of the European parliament and of the council on the protection of the environment through criminal law 2007/0022.

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effective, proportionate and dissuasive criminal sanctions in place.27 A reason for demanding criminal sanctions is that criminal sanctions demonstrate a social disapproval of a qualitatively different nature compared to administrative sanctions or a compensation mechanism under civil law.28 This emphasises the need for criminal protection of the environment against harmful activities. Criminal law controls by prohibiting certain acts. Criminal law either states in a conduct crime rule exactly what kind of behaviour is illegal per se or actions that cause a certain effect without saying anything about the causation of the effect, a result crime.29 An example of a conduct crime is the drink driving rule which states that it is illegal to drive if you have over a certain percentage of alcohol in your blood. It is a crime whether or not the driving has resulted in an accident.30 An example of a result crime is murder which criminalises the causing of someone’s death without the rule saying anything about what that cause might be.31 Both conduct crime and result crime constructions are used in environmental criminal law. Conduct crime provisions are mostly used to protect the administrative system, while a direct protection of the environment as such often is carried out by result crime rules. In order to prevent damaging effects criminalising acts that have a certain effect is often thought to be insufficient. There is a need for criminalisation of behaviour that causes situations that are likely to lead to the unwanted effect. This is done by criminalising attempts to cause harm but also more specifically by endangerment criminalisation.32 When it comes to endangerment crimes, the law differentiates two types of endangerment. The criminal provision can either require a concrete danger to have obtained which is a real danger to someone; conversely, an interest or state can be endangered by an abstract danger, which means that situation has caused a typical risk.33 These endangerment crimes are important for the protection of the environment since they are, in a way, sustainability oriented. Endangerment crimes are situations which are dangerous and dangerous situations can be said to jeopardise sustainability. Before continuing, it is necessary to distinguish two situations where criminal law is used in the protection of the environment. First, criminal law is used to protect and uphold the administrative system. An essential instrument of environmental law is the requirement to apply for a license before certain activi27

Proposal for a directive of the European parliament and of the council on the protection of the environment through criminal law 2007/0022.

28

Explanatory memorandum to the Proposal for a directive of the European parliament and of the council on the protection of the environment through criminal law 2007/0022.

29 30 31

Simester and Sullivan (2004) 71-72.

Law (SFS 1951:649) on Traffic Offences section 4.

Criminal Code (SFS 1962:700) chapter 3 section 1.

32 33

Ashworth (2006) 301 and 330-332.

Duff (2005) 43.

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ties may start or continue in altered fashion. It is also important to attach conditions to the execution of a granted license. Here criminal law is used to sanction violations against the administrative system. It is important but relatively uncomplicated to sanction these requirements by criminal provisions. These crimes may be called crimes against the administrative system. Secondly, criminal law comes into play whenever the atmosphere, water, ecosystems or other part of the environment as such are damaged. These rules concern different types of violation against nature in itself, e.g., they criminalise acts that cause damage to humans or nature or imply a risk of such damage. Since these crimes harm the environment they are more complicated to sanction than crimes against the administrative system. These crimes may be called crimes against the nature. To conclude, both kinds of criminal provisions seem to fulfil important functions in connection with environmental protection. In the following, I want mainly to focus on criminal provisions targeting danger or harm to the environment because it is here that the principles of criminal law collide head on with those of environmental law.



5 To Protect the Administrative System

One important example of an administrative rule is the requirement to apply for a licence before an activity may start. This requirement is essential for the protection of the environment because it makes it possible to assess the consequences of and alternatives to an activity and impose requirements before any damage occurs and before the costs of modifying the project are too high. Another example is the requirement not to exceed permit conditions. In Sweden these kind of administrative rules are protected both by criminal law provisions34 and by an administrative sanction called environmental sanction charge.35 Criminal charges can be brought against someone who violates an administrative rule specified in the relevant penal provision. The criminal construction used here is the one of a conduct crime type. That means that there is no need to prove that the violation of the rule had any particular effect on the environment. It is enough for conviction that the administrative rule, for instance the requirement of a permit, was not obeyed. The violation can have been done with intent or by negligence. Environmental sanction charges can be imposed for violations against the administrative system which are regarded as less severe that those sanctioned by criminal sanctions.36 A special ordinance describes the situations in which an 34 35

Environmental Code (SFS 1998:808) chapter 29 sec 4-7.

Environmental Code (SFS 1998:808) chapter 30.

36

Prop 2005/06:182 p. 46.

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environmental sanction charge can be used.37 This is an administrative sanction decided by the supervisory authorities and not a criminal sanction decided by the court. A charge shall be imposed even if the violation has not been committed with intent or by negligence. The protected object of the sanction is the administrative system and there shall therefore be no examination of the violation’s environmental impact even if it had one. Since neither the criminal rules protecting the administrative system, nor the administrative sanction charges require any evaluation of environmental impact, they are normally easy to apply. An interpretation in line with the principle of sustainable development is therefore not necessary in the criminal proceedings regarding these rules. It is fair to say that the issue of sustainability was considered at an earlier stage, when the permit obligation was introduced into the legal system and when the authorities decided on the conditions to attach to a license.



6 To Protect the Environment As Such

Criminal law traditionally deals with situations where there is an obvious damage to a clearly identified victim and an individual relationship between perpetrator and victim.38 In a murder case, both the victim and perpetrator are relatively easily identifiable – there is the person who is dead and the person who violation that person’s right to life. A murder is therefore a very good example of a genuine and basic criminalised act. When it comes to environmental crimes it can be much more difficult is to identify the victim and his relationship to the perpetrator. In some environmental crimes, however, it is possible to see a quite clear connection between victim and harm. Assume a person discharges a toxic substance into a river, causing damage to the fish, to people swimming in the river or its potable qualities. Such an act is often criminalised and the difference between this offence and a murder is not significant. It is in these cases possible to formulate a provision stating that it is a crime to cause damage to humans, fish or water quality. We can see the victim and understand and accept that their right to use the water has been violated. But there are other environmental situations where the connection is less obvious. “Environmental protection can involve perpetrators and victims who can only be identified statistically where harm results from barely measurable multiple causes.”39 These cases are obviously harder to deal with from a traditional criminal law perspective. One method to handle the problem of victimless crime and unclear harm could be to develop new offences and to state in the 37

Ordinance (SFS 1998:950) on environmental sanction charges.

38

Kiss and Shelton (1997) 148.

39

Ibid (1997) 148.

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criminal provision that it is the environment as such that must not be harmed, and not require proof of harm of specific victims. 40 To write a rule that has the level of legal certainty required and at the same time can take the unpredictability of nature into consideration is far more complicated than writing a rule for a more traditional criminal situation like, for example, murder. A fundamental principle in criminal law is the principle of legal certainty, also known as the rule of law. This principle requires a criminal provision to be clearly written, so that what is prohibited can be understood. There must be ‘fair warning’ so that it is possible to predict the outcome of one’s actions in a criminal perspective. 41 Is it possible for someone to predict whether substance X, if discharged into a river, might cause harm to the environment? It might be more difficult to predict the exact outcome of such an act than of shooting someone, but it is not impossible to predict the likely harm brought about as a result of that act. Even if nature’s reactions to pollution are more difficult to predict than how a human body will react to a gunshot, could it not be argued that precisely the fact that it is complicated to predict the outcome of discharging substance X into a river, ought to be something the person who is responsible for the discharge should have understood before committing the act? In a legal certainty perspective it is considered acceptable to have a rule that is connected to the effect without saying how the effect might be caused. 42 But it must be possible for a normally intelligent person to predict the consequences. 43 Another problem connected to environmental impact uncertainty of different actions is that it often is difficult to prove a causative link between the act and a change in water quality. This insecurity makes it a bit difficult to prohibit the cause of a certain effect in court because criminal law requires a clear causative link in order to make a conviction. Another problem in connection with pollution concerns delayed damage. Criminal law is normally a matter of punishment for something that has happened. Is it acceptable to punish a polluter when no objective damage can be found, only a risk of damage occurring at some later stage? Should we not, for a criminal offence, require the damage to follow immediately upon the act, or at least demand evidence of a risk of damage in the near future? Well, sustainable development obliges us to act today in a responsible and sustainable way for the sake of future generations. It is an obligation on us today. It can therefore be argued that this obligation as such can be violated. It would not then be a matter of saying that someone should be punished today for something that might or

40 41

Ibid (1997) 148.

Simester and Sullivan (2004) 40-42.

42 43

Ashworth (2006) 75.

Ibid (2006) 77.

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might not happen, it is about regarding carelessness as a violation against our responsibility to be careful. The difference between the problems, like murder, traditionally dealt with in criminal law and the problems concerning environmental matters, like pollution, must be taken into consideration when making rules to protect the environment as such. A conduct crime rule for the protection of the environment as such could for instance state that it is “illegal to discharge substance X in any amount or in excess of an amount specified”. A rule like this is a very clear rule in a legal certainty perspective. It is also an easy rule to apply in court. It would only be a question of deciding if there had been a discharge or not and who could be held responsible for it. There would be no evaluation of its environmental impact, which means that the difficult problem with uncertainty as to the effects of the discharge can be left aside. But the downside of a rule of this type is that it would apply only to a situation where substance X was discharged, and since there are many dangerous substances on the market and new ones continuously introduced, a great number of rules would be needed to cover every dangerous substance. Furthermore, some substances are dangerous only in connection with other substances (synergism) or only in specific environments. Consequently the legislative task would be extremely difficult, not to say impossible, and above all to excessive. To conclude, conduct rules fulfil an important function in protecting the environment, but they are not sufficient. A result crime rule for the protection of the environment as such could be a rule expressing that it is “illegal to cause harm to the environment or to act in a way as is likely to cause harm to the environment”. Such a rule is open to the fact that it can be a number of different activities that causes the harm. The controversial issue here is how to satisfy the legal certainty criterion. Is a rule against causing damage or causing risk of damage to the environment without detailing the behaviour causing the effect an unclear rule? This depends on whether it is easy to understand whether the described damage can be a result of the activity or not. In a murder situation it is relatively easy to estimate if shooting at someone or poisoning someone’s food is likely to cause the unlawful effect, which is the other person’s death. If the unlawful effect is damage or possible damage to the environment the situation becomes more complicated due to the difficulties in predicting nature’s response to different activities.



7 How can Sustainable Development be Used in Interpretation of Existing Rules?

When the Environmental Code was adopted in 1999 the main criminal provision on pollution was moved from the criminal code to the

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Environmental Code and other criminal rules were transferred to the code from revoked environmental acts. It was considered important to gather the criminal provisions together in the Environmental Code as it would make the environmental system more efficient and the central role of criminal provisions in environmental matters more obvious. 44 Some new provisions were also adopted and all criminal provisions are now gathered in one of the code chapters. 45 Since the criminal provisions are part of the Environmental Code the first section of the code, which states the purpose of the code as promoting sustainable development, as well as the enumerated goals concerning recognition of nature’s intrinsic value and interests of future generations ought to be applicable also to the criminal provisions. But to what extent can criminal provisions be applied so that a sustainable development is promoted? The question is whether, on the one hand, such a principle should be allowed to influence criminal law rulings, and on the other, whether the principle fails the legal certain criterion because it is too vague and too general. Is it possible and perhaps necessary to relax our demand for legal certainty given the importance of the goal of sustainable development? The environmental crime provision on pollution in Sweden applies to activities or omissions committed with intent or by negligence, which causes a discharge into land, water or air of a substance which typically or in the particular case involves or is liable to involve a pollution that is harmful for people’s health, animals or flora or fauna, if not only of minor importance, or any other significant inconvenience to the environment. 46

The provision is an example of an abstract endangerment rule. It is pointed out in the legal text that it is enough for the situation to cause a typical risk. 47 The rule was changed in 2007 to make it more obvious that it is an abstract endangerment rule. Perhaps the new sustainability approach in the code, together with the precautionary principle, has promoted the change of this criminal provision. There are several ways in which this rule can be interpreted in a sustainable way. The protected objects of the rule are human health, animals or flora or fauna. An interpretation in accordance with the principle of sustainable development could include not just humans, animals and plants but the whole ecosystem, as sustainable development requires not only protection of species but also the relations between them; a stable ecosystem is important for future generations. Furthermore, a sustainable interpretation of the ‘damage’ could include 44 45

Prop. 97/98:45 Part 1 pp. 520-521.

Environmental Code (SFS 1998:808) chapter 29.

46 47

The Environmental Code (SFS 1998:808) ch 29 sec 1.

Prop 2005/06 :182 pp. 57-59.

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not just total extinction of a species, but also such changes of the ecosystem that endanger the living conditions of the species. A sustainable interpretation of harm would make it possible to regard less severe harm as illegal. By taking sustainability as a benchmark when deciding which acts or omissions constitute a risk of environmental harm, a broader variety of acts and omissions could be considered for inclusion. To use sustainability arguments in the evaluation of whether or not the defendant was negligent ought to make it possible to require a higher degree of carefulness on his part.



8 How can Sustainable Development be Used to Make New Rules?

If we accept the sustainability perspective and also the need for criminal provisions as enforcement mechanisms, an important task will be to design the environmental provisions and requirements in the best possible way so that they promote or at least do not obstruct this goal. 48 While the principle of sustainable development in a way expresses a rule about how we should act it would be difficult to write a rule based on one of the wordings of the principle. And respect for legal certainty would make it difficult to write a conduct crime rule stating, for instance, that “everyone must act in a sustainable way”. It would be impossible to achieve interpretative consensus on what such a rule meant either in practice or in theory. It is also not common in criminal law to express a rule in this active form, as a requirement to act in a certain manner. Criminal law normally seeks to influence behaviour by stating what is not an acceptable behaviour. Legal certainty implies limitations on the extent to which a criminal rule can be stretched and how much leeway is allowed in its interpretation. Nevertheless it is important to notice that legal certainty is about maximum certainty, not absolute certainty. Some interpretative leeway must be allowed and criminal law must at least to some extent be able to use open-ended terms like ‘reasonable’ or ‘dishonest’. If it did not, definitions in law would have to be so detailed that the system would come to a virtual standstill. 49 Therefore it might be possible to argue that ‘sustainability’ or ‘unsustainability’ could be used in environmental criminal provisions. To write a rule more in the manner of traditional criminal law would be to state in a rule what people cannot do. Sustainable development can be understood as a rule telling us how to act. We must act in a sustainable way. We could have, conversely, a rule which orders us to not act in an unsustainable way. “It is illegal to act in an unsustainable way”. Such a rule would probably be considered clearer, but there would still be problems with legal certainty. What exactly 48

Westerlund (1997) 52-66.

49

Ashworth (2006) 74-77.

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constitutes such unacceptable behaviour is not clearly specified. A contrasting example is the drink driving regulation. It is operationalized – made measurable – as alcohol blood level.50 Would it be possible to write a result crime rule connected to the concept of sustainable development? If the desired goal is sustainable development or sustainability the unwanted effect would be unsustainable development or unsustainability. A rule of this type could state that “It is unlawful to act in a way that causes an unsustainable condition in nature” or “Everyone must act so that an unsustainable situation in the environment is avoided”. Such a provision may be compared with the Swedish criminal provision related to “reckless driving”. All drivers in Sweden are instructed to “drive as carefully as necessary in order to prevent any accident”.51 How careful you need to be depends on the situation. Weather and road surface conditions, traffic intensity and similar circumstances have to be considered when applying this rule in an actual situation. The driver is obliged to be cautious but the law does not explain exactly what is required of him. There are additional, more or less specific traffic regulations which partly supplement the vaguely formulated criminal provision. Such a rule is not considered to be too unclear.52 If we can accept this kind of rule in the field of road safety, perhaps we could develop the same legal thinking in the field of criminal environmental law. There could be a relatively generally formulated criminal provision prohibiting activities leading to unsustainable situations and effects, supplemented by the general rules of consideration and other environmental legal requirements (if the Swedish environmental code is taken as an example). The exact wording of such a general environmental criminal provision requires of course further consideration.



9 Concluding Remarks

In many cases the solution to problems concerning legal certainty is to write clearer administrative rules and regulate behaviour through licence regulations. The role of criminal law is in this sense that of safeguarding this system. Since the administrative rules and decisions are based on considerations of sustainable development criminal law could be said to be protecting sustainable development in an indirect way. But this is not enough. Criminal law must also protect the environment in a more direct way. We need rules which criminalise behaviour that causes damage makes damage likely. Criminal law is, in a sense, about risk management and criminal law is used to get people to behave in an acceptable fashion 50 51

Law (SFS 1951:649) on Traffic Offences section 4.

Law (SFS 1951:649) on Traffic Offences section 1.

52

Simester and Sullivan (2004) 42-44.

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by prohibiting unwanted behaviour. Behaviour society considers to be unwanted can be prohibited in criminal law. There are, of course, limits to how far one can go in the use of criminal law to protect the environment. It is not possible to write a rule which explicitly requires everyone to ‘behave sustainable’ or prohibits ‘unsustainable behaviour’. Such rules would never pass the legal certainty rule. A rule that instead prohibits the causing of unsustainable effects, and which requires the subject to exercise caution could perhaps be seen as less problematic from a legal certainty perspective. If one knows there is a legal requirement to exercise caution, one would have to act according to that requirement. Therefore it ought to be possible to use the precautionary principle in an argument about whether or not a person pursuing an activity has taken an unlawful risk and if the behaviour therefore can be considered to be negligent and unsustainable. If precaution in order to achieve sustainability is explicitly required in a legal text then it will be possible for everyone to anticipate a reaction if precautionary measures are not taken. The Swedish Environmental Code states that sustainable development is a desired goal, e.g., a desired behaviour, and therefore it can be argued that unsustainable behaviour is equal to unwanted behaviour. Criminal law must be used to condemn acts and behaviour that have unsustainable effects. It is unsustainable to cause damage to the environment but in order to achieve sustainability it is also unsustainable to expose the environment to a risk of damage. This leads to the conclusion that it is not enough to criminalise acts that cause damage if we want to induce people to act in a sustainable and precautionary way. To be less careful than is needed to prevent accidents must to some extent be criminalised. There must be endangerment criminalisation. Such criminalisation can prohibit the endangerment of human life or the life of specific species, but in order to be sustainable the endangerment law ought to prohibit acts that endanger the ecological balance. If we expect criminal law to play a major role as one of several legal instruments promoting sustainable development it is necessary for criminal law to address the principles of sustainable development and precaution. Sustainability is about acting with caution; together with the precautionary principle it could be used in the interpretation of such rules. To broaden the definition of damage and of what can be damaged, as well as what type of behaviour is considered negligent, sustainable development in a criminal law perspective might have its greatest importance as a starting and reference point for the precautionary principle. It is the principle of sustainable development together with the precautionary principle that must be used to define crimes against nature.

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Bibliography Ashwort (2006) Ashwort. A, Principles of criminal law (New York 2006) Oxford University Press.

Bell and McGilliwray (2006) Bell. S and McGilliwray. D, Environmental Law, (New York 2006) Oxford University Press.

Birnie (2002) Birnie, P, W and Boyle, A, E, International law and the environment, (New York 2002) Oxford University Press .

de Sadeleer (2002) de Sadeleer, N, Environmental principles from political slogans to legal rules, (New York 2002) Oxford University Press.

de Sadeleer (2007) de Sadeleer, N Origin, status and effects of the precautionary principle in de Sadeleer, N (ed) Implementing the Precautionary principles, approaches from the Nordic Countries, EU and USA, (London 2007) Earthscan.

Duff (2005) Duff, RA Criminalising Endangerment in R A Duff and S P Green (eds) Defining Crime (Oxford 2005) Oxford University Press.

Gröning (2004) Gröning, L, ”Evolution eller erosion? – Några reflektioner kring miljöstraffrätten” Tidskrift utgiven av juridiska föreningen i Finland, etthundrafyrtionde årgången tredje och fjärde häftet 2004.

Kiss and Shelton (1997) Kiss, A and Shelton D, Manual of European environmental law (Cambridge 1997), Cambridge University Press.

Lindblom (2000) Lindblom, P-H ”In dubio pro natura! Några civilprocessuella frågor inom miljörätten,” juridisk tidskrift, årgång 12 2000-01 nr 4.

Michanek and Zetterberg (2004) Michanek, G and Zetterberg, C, Den Svenska miljörätten (Uppsala 2004) Iustus förlag.

Michanek (2007) Michanek, G, Sweden in de Sadeleer N (ed) Implementing the Precautionary principles, approaches from the Nordic Countries, EU and USA , (London 2007) Earthscan.

Nouttio (1991) Nouttio, K, ”Kan straffrätten användas för miljöskydd” Retfaerd 14.årgång 1991.

Nouttio (1998) Nuottio, K, ”Straffansvarets samhälleliga förankring” Retfaerd 21.årgång 1998.

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a sustainable criminal law – criminal law for sustainability

Richardson and Wood (2006) Richardson, B, J, and Wood, S, Environmental law for sustainability in Richardson, B, J, and Wood, S (Ed.) environmental law for sustainability (Oxford and Portland, Oregon 2006) Hart Publishing.

Simester and Sullivan (2003) Simester. AP and Sullivan. GR, Criminal law theory and doctrine, (Oxford – Portland Oregon 2003) Hart Publishing.

Takala (1995) Takala, H, Något om risker och straffrätt in Victor D (ed) Varning för straff – Om vådan av den nyttiga straffrätten (Stockholm 1995) Fritzes.

Träskman (2002) Träskman, P-O, ”Straffrättens förutsättningar och begränsningar som styrmedel för miljöskadlig verksamhet” nordisk tidskrift for kriminalvidenskab, marts 2002, 89.årgång Nr 1.

Westerlund (2003) Westerlund, S Miljörättsliga grundfrågor 2.0, (Uppsala 2003) Åmyra förlag.

Westerlund (1997) Westerlund, S En hållbar rättsordning, rättsvetenskapliga paradigm och tankevändor, (Uppsala 1997) Iustus förlag.

World Commission on Environment and Development (1987) World Commission on Environment and Development (1987) Our common future “Development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.

Legislation • Environmental Code (SFS 1998:808). • L aw (1951:649) on Traffic Offences. • Criminal Code (1962:700). • Ordinance (1998:950) on environmental sanction charges.

Community legislation • Proposal for a directive of the European parliament and of the council on the protection of the environment through criminal law 2007/0022.

Official documents Government Bills • Prop 1997/98:45 Miljöbalk. • Prop 2005/06:182 Miljöbalkens sanktionssystem mm.

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part vi climate change, energy and sustainable development chapter 6.1

Sustainable Development within the Climate Change Regime Massimiliano Montini

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sustainable development within the climate change regime

1 Introduction: The Legal Understanding of the Concept of Sustainable Development

The concept of sustainable development is a multi-faced, multimeaning and complex concept that has attracted the attention of several scholars dealing with international law since its first appearance in the public debate. The genesis of the concept of sustainable development is commonly reported to the 1987 Brundtland Report, which contains the well-known definition of “sustainable development” as: development that meets the needs of the present without compromising the ability of future generations to meet their own needs.

The definition contained in the Brundtland Report is based on the two opposed concepts of “needs” and of “limits”. On the one side, it says that the objective of sustainable development can be reached only if the “needs” of the present and future generations are satisfied in a fair and equitable way. On the other side, however, it implies that no development can be considered to be “sustainable” if no “limits” are placed on the exploitation of the environmental resources in the name of economic development. In other words, development can be sustainable only if some “limits” are imposed upon it and if it does not pose an excessive burden on the capacity of the environment to sustain the human pressure, so as to permit a fair and equitable satisfaction of the needs of the present and future generations. The main elements constituting the principle of sustainable development, in the framework of its basic and traditional definition contained in the Brundtland Report, are essentially four. The first constitutive element is represented by the concept of the prudent and rational use of natural resources. Such a concept is the basic guideline which must inform the conduct of all States of the international community when they are determining and implementing their national policies on economic development and environmental protection. Moreover, the aim of the prudent and rational use of natural resources must be taken into account by States also when they co-operate for the conclusion of international agreements in the field of economic development and environmental protection, so as to promote sustainable patterns of development. The second constitutive element of the concept of sustainable development is represented by the principle of inter-generational equity. Such a principle imposes upon States the duty to take into account not only the needs of the present generation, but also the plausible needs and the overall benefit of future * 

Massimiliano Montini is Associate Professor of European Union Law, University of Siena, Italy.

See Brundtland Report (1987).

 

See Sands (2003) p. 198.

See Sands (2003) p. 201.

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generations. The wide reach of the concept of inter-generational equity may be well explained by making reference to the legal concept of the “trust”. In fact, if we keep in mind that, as “members of the present generation, we hold the earth in trust for future generations”,  it follows that we are compelled to make a prudent and rational use of the natural resources available so as not to deplete excessively the stock of natural resources left to us by the previous generation and leave to the next generation the same possibilities we have to meet their own needs. The third constitutive element of the concept of sustainable development is represented by the principle of intra-generational equity. According to such a principle, each State in the definition of its developmental and environmental policies must take into account the benefit of the other peoples and States around the world. The principle of intra-generational equity is closely related to the principle of inter-generational equity. Both principles have in common a fundamental “social dimension”. However, while the inter-generational perspective adopts a dynamic and inter-temporal approach, the intra-generational perspective tries to promote a fair and equitable distribution of the world resources with reference to a static approach, which considers the present historical situation. Moreover, the principle of intra-generational equity is closely linked also to the principle of common but differentiated responsibilities, as enshrined in Principle 7 of the Rio Declaration, which affirms that all States have a duty to co-operate in a spirit of global partnership to tackle the most serious global environmental problems. However, not all States have the same duties and responsibilities to act for the benefit of the Earth’s ecosystem. Quite to the contrary, in many circumstances they ought to be subject to differentiated responsibilities, in the framework of a common general objective. In such a context, obviously, in order to define precisely such respective responsibilities, due account should be taken of their different contributions to the occurrence of the specific cases of environmental degradation. The fourth constitutive element of the concept of sustainable development is represented by the principle of integration. Pursuant to such a principle, environmental considerations must be integrated into economic development projects, plans and programmes, so as to promote an environmentally friendly approach to economic development. The principle of integration is defined in the following terms in Principle 4 of the Rio Declaration: 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.

 

See Weiss (1990) p. 1999.

See Sands (2003) p. 199.

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It should be underlined that, in absence of any specific indication to the contrary, the principle of integration is meant to drive both the national and international policies of States towards a more sustainable approach; in fact, in recent years it has been incorporated in several national and international legal instruments to this effect. Moreover, the principle of integration ought to play a decisive role if the concept of the “sustainable development” is really to become a privileged instrument by which to find a balance, on a case by case basis, between the right to development and the protection of the environment. The basic and traditional definition of the principle of sustainable development just described, based on four constitutive elements, was partially reviewed and updated at the Johannesburg Conference. In fact, the Johannesburg Political Declaration underlines that the principle of sustainable development is based on three interdependent and mutually reinforcing pillars, namely ‘economic development, social development and environmental protection’, which must be collectively promoted and advanced at local, national, regional and global levels.

In more general terms, it can be noted that while the Stockholm and Rio Conferences had mainly focused on the interplay between environmental and economic issues, at the Johannesburg Summit attention gradually shifted from environmental to economic and social issues. Therefore, in the Johannesburg Declaration the Parties recognise that poverty eradication, changing consumption and production patterns, and protecting and managing the natural resource base for economic and social development are overarching objectives of, and essential requirements for sustainable development.

In such a context, the centrality of the more traditional objective of the protection of the environment as such seems likely to be gradually replaced by the more dynamic objective of the protection and sound management of natural resources intended as pre-requisites for economic and social development. In an era of increasing economic globalisation, the traditional environmental and social challenges seem to have gained a new dimension which must be taken into account. However, pursuant to the Johannesburg Declaration, “the rapid integration of markets, mobility of capital and significant increases in investment flows around the world have opened new challenges and opportunities for the pursuit of sustainable development.” In sum, the wording of the Johannesburg Declaration seems to build on the previous Stockholm and Rio Declarations, but with two important differences. The first one is that the latter Declaration does not contain legal principles, but 

See Sands (2003) p. 205.

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merely political statements. The second is that the latter Declaration, departing from the previous ones, shifts its main focus on economic and social development themes, whereas the protection of environment seems to be left aside, almost as the less important pillar of the three on which the concept of sustainable development is based. The complexity of the concept of sustainable development is well known and I am convinced that it is almost impossible to provide a clear and comprehensive definition of it which may be able to encompass in a single framework its broad and far reaching constitutive elements. Due to its vagueness and often perceived irreconcilable nature of its basic pillars, namely the economic, environmental and social dimensions, the concept of sustainable development is still denied the recognition of the status of a “legal principle” by most scholars and by the relevant practice of States, although this does not render its role less pivotal in contemporary international as well as national law. As to the most relevant opinions of the legal scholars, it remains substantially valid, the analysis of the principle of sustainable development proposed at the beginning of the ’90s by Gunther Handl, according to which Normative uncertainty, coupled with the absence of justiciable standards for review, strongly suggest that there is as yet no international legal obligation that development must be sustainable, and that decisions on what constitutes sustainability rest primarily with individual governments.

From this analysis, all the main difficulties related to the recognition of the role of a legal principle to the concept of sustainable development, such as, first of all, the uncertainty as to its legal content as well as the absence of adequate criteria for its justiciability, are clearly outlined. Starting from this analysis, a similar though even more incisive approach was then proposed in a seminal article by Vaughan Lowe, which stated that the argument that sustainable development is a norm of customary international law, binding on and directing the conduct of States, and which can be applied by Tribunals , is not sustainable.

From then onwards, most of the legal scholars have substantially taken the same kind of approach, denying the recognition of a formal legal principle to the concept of sustainable development, often stressing however the positive role 

On the principle of sustainable development in general see, in the legal literature Lowe (1999) p. 19 ss.; Sands ibid., p. 39 ss.; Sands (2000) p. 369 ss.; Cordonier Segger & Khalfan (2004); Schrijver & Weiss (2004); French (2005); Cordonier Segger & Weeramantry (eds.) (2005).



See Handl (1990), p. 25. Later, this perspective has been taken also by other authors. See for instance Montini (2001), p. 38.



See Lowe cited supra p. 30.

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the concept may play as a reference point and inspirational instrument for the progressive development of international law or as an interpretative tool for the “evolutionary interpretation” of the existing norms.10 In fact, despite the “careful” approach proposed by most legal scholars with the regard to the legal nature of the concept of sustainable development, it would be wrong to argue that it should be denied a relevant role in contemporary international law. If one looks at the relevant international practice it emerges that the concept of sustainable development in the last couple of decades has started to influence concretely the development of international law and has been assigned a distinctive role by international courts and tribunals. This was so, for instance, in the Gabcikovo-Nagymaros case (1997), when the ICJ defined “sustainable development” as “a concept which may reconcile economic development with environmental protection”. The Court, however, in that circumstance did not want to take a position on the legal status of the principle of sustainable development under international law, despite the progressive and very positive approach towards the principle shown by Judge Weeramantry and reflected in its paramount Dissenting Opinion attached to the decision of the Court.11 In any case, irrespective of the legal status accorded to the principle under international law, the concept of sustainable development has already been recognised as an “interpretative principle” which may be used to keep up to date the relevant pre-existing international law provisions. The Shrimps/Turtles case (1998), judged by the Appellate Body of the WTO, is a concrete example. Here, the principle of sustainable development was recognised by the adjudicatory body as an interpretative tool which may serve to keep up to date the meaning of the pre-existing norms of the GATT Agreement, in application of the principle of the “evolutionary interpretation” of the pertinent provisions of international law.12 Therefore, notwithstanding all the reservations that have emerged down the years from the writings of most scholars and in the relevant legal practice on recognition of sustainable development as a “legal principle” , one should rather stress and highlight the “constitutional dimension” and the very important role the principle enjoys nowadays both at international and at national level. In fact, it serves as a fundamental “planning instrument” for the development of international as well as national plans and programmes aimed at reconciling the concept’s economic, environmental and social dimensions, which at a first sight may appear to be in a state of permanent contrast, the one with the other. In any case, it should be underlined here that it is not the specific aim of the present paper to contribute to the theoretical discussion on the legal nature

10 11

On the “evolutionary interpretation” see for instance Francioni (2001) p. 23.

See Gabcikovo- Nagymaros case, ICJ Decision, 25 September 1997, § 140 and Dissenting Opinion of Judge Weeramantry.

12

See Shrimps/Turtles case, Decision of the Appellate Body, WT/DS58/AB/R, 1998, § 129.

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and the possible implications of the concept of sustainable development for the progressive development of international law. For the purpose of the present analysis, which will be devoted in particular to exploring the linkages between the concept of sustainable development and the legal regime that has developed in the last two decades in the field of climate change, I will therefore start from the following assumption. Irrespective of the outcome of the issue regarding the legal nature of the concept of sustainable development under international law, a meaningful analysis of the effective role of the concept of sustainable development in a specific sector – in our case, climate change – ought to proceed by recognizing that sustainable development nowadays should no longer be defined as a “legal principle”. This is essentially because it does not point only in a certain direction, , but it rather seems to constitute a “complex policy objective”, composed of several more specific principles, criteria or rules, somehow variously related to the three pillars that are normally understood to compose it, namely the economic, the environmental and the social dimensions. In other words, I am convinced that we need to “break the unity” of the concept of sustainable development and shift our analysis to the issue of the legal nature of the individual constitutive elements, principles or sub-principles, criteria or policy guidelines which may be said to compose it, rather than keep on trying to provide a commonly agreed solution to the issue of its legal nature based on the need to maintain an uniform approach for such a multi-faced, multi-meaning and complex concept. On the basis of such a line of reasoning, one could consider that each of the four constitutive elements, described above as the backbone of the principle of sustainable development under its traditional definition, should be rather considered as substantive principles in themselves. Therefore, each of these elements or principles could be subject to a separated appraisal with regard to its specific legal nature and concrete role under international law, in terms both of its normative character, that is its attitude to create obligations upon States and public/private Parties, and of its capacity to be used as a supporting tool in the interpretation and application of the existing rules. In similar terms, it has been argued in the legal literature that “a body of substantive principles of sustainable development is emerging, supported by distinctive procedural elements.”13 Those principles are still part of an open set, which does not include a series of principles with a homogeneous legal value or nature. However, an interesting starting point for defining a commonly acceptable list of legal principles for sustainable development might be the set of principles elaborated by the International Law Association (ILA) and contained in the 2002 New Delhi Declaration on the Principles of International Law Related to Sustainable Development.14 13

See Cordonier Segger & Khalfan (2004) p. 97.

14

Ibid.

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In the New Delhi Declaration, seven principles are listed: • t he duty of States to ensure sustainable use of natural resources; • t he principle of equity and the eradication of poverty; • t he principle of common but differentiated responsibilities; • t he principle of the precautionary approach to human health, natural resources and the ecosystems; • t he principle of public participation and access to information and justice; • t he principle of good governance; • t he principle of integration and interrelationship, in particular in relation to human rights and social, economic and environmental objectives. As one can see, the basic content of such principles largely reflects the four constitutive elements. However, if one looks carefully, it emerges that the social dimension has a greater role in the ILA formulation than in the traditional one and a certain tension towards the full incorporation of modern “democracy” tools, such as the principle of public participation or the principle of good governance, tends to emerge. Having said all that, drawing on the basis of the proposed understanding of the principle of sustainable development, the present contribution will skip any further discussion on the legal nature or exact content of the concept of sustainable development and/or of any of its constitutive elements, principles or subprinciples. The more modest and limited aim of the present paper is the analysis of the framework for the application of the concept of sustainable development in a specific sector, namely the climate change field, trying to assess the possible advantages in terms of a more efficient and effective environmental protection which may derive from an increased incorporation of the concept of sustainable development in the field of climate change.



2 The Interplay Between Sustainable Development and Climate Change: The Climate Change Perspective

The two concepts of sustainable development and climate change have both attracted debate among and attention of experts and the general public during the last two decades. In fact, while the concept of sustainable development became popular with the report “Our Common Future” by the World Commission on Environment and Development, the Brundtland Report (WCED, 1987), climate change and related risks possibly associated with man-made global warming were brought to the attention of policymakers first at a meeting organized jointly by the World Meteorological Organization (WMO), the United Nations Environment Programme (UNEP) and the International Council for Science (ICSU) in 1986.

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The issue was also briefly addressed in the Brundtland Report itself, within the energy chapter. However, despite the similarities and early contacts between the two concepts, they have existed in virtual isolation from each other, following parallel paths for several years. Moreover, until the beginning of the present decade, they were mainly dealt with in different institutional arenas, the climate change debate being mostly natural science-driven, while the sustainable development debate was framed in a more social and human science-oriented approach.15 In the decade that followed the Rio Earth Summit in 1992, the international efforts led to the adoption of Agenda 21 (UNCED, 1992), intended as a manifesto for the development of sustainable policies and practices to be implemented mainly at the national level by the UN Parties, and the United Nations Framework Convention on Climate Change (UNFCCC, 1992), conceived as an international legal framework for organizing more efficiently the fight against climate change. In this contexts, on the one side, the debate about how to achieve sustainable development in practice basically did not touch upon climate change, which was dealt within the framework of the UNFCCC only, and on the other side climate change initiatives were not planned or framed within a broader sustainability context, despite the not very effective reference to sustainable development contained in Article 3(4) of the UNFCCC. A first step towards a partial convergence of the two issues was made by the 1997 Kyoto Protocol on climate change, where sustainable development was mentioned as one of the objectives to be pursued with the implementation of Clean Development Mechanism (CDM) projects (Article 12 of the Kyoto Protocol)16. The CDM mechanism allows Annex I Parties to the UNFCCC (industrialised countries), which have binding limitations and reduction commitments under Annex B of the Kyoto Protocol, to carry out “project activities” in nonAnnex I Parties (less industrialised or developing countries without a binding emission limitation or reduction commitments) aimed at reducing emissions or enhancing removals by sinks of greenhouse gases.17 The peculiarity of the CDM is that it was designed to accomplish a two-fold objective. On the one side to assist Annex I Parties to partially fulfil their limitation or reduction commitments, by making “use” of the emission reductions obtained through the project, and on the other to help non-Annex I countries achieve sustainable development. 15

See Dalal-Clayton, Bass, Robins and Swyderska (1998); Pintér, Hardi and Bartelmus (2005).

16

See Article 12 of the Kyoto Protocol: “2. The purpose of the clean development mechanism shall be to assist Parties not included in Annex I in achieving sustainable development and in contributing to the ultimate objective of the Convention, and to assist Parties included in Annex I in achieving compliance with their quantified emission limitation and reduction commitments under Article 3.”

17

See in general on the Kyoto Protocol and the climate change legal regime Yamin and Depledge (2004); Freestone, Streck C2005) Bothe, Rehbinder (eds.) (2005); Douma, Massai and Montini (eds.) (2007).

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However, the Kyoto Protocol did not clarify how the CDM projects could effectively contribute to achieving sustainable development. This was addressed at the following meetings of the Conference of the Parties (COP) to the UNFCCC in the framework of the process for the determination of the modalities for the functioning of the Kyoto Protocol flexible mechanisms. It was not until 2001 that the Conference of the Parties was able to agree on the rules and modalities for the realization of CDM projects, in the framework of the so-called Marrakech Accords. In the Preamble to the Marrakech Accords, it is in fact stated in clear terms that it is the host Party’s prerogative to confirm whether a clean development mechanism project activity assists it in achieving sustainable development.(Decision 17/CP.7)18

This means, in other words, that the UNFCCC Parties decided that no general and always applicable criteria on how to judge the sustainability of the proposed CDM projects were to be defined once and for all at the international level, but it was decided to ultimately leave to each of the Parties to the Kyoto Protocol the possibility to determine their own national criteria for sustainable development, taking into account their particular economic, social and environmental objectives and priorities.



3 The Interplay Between Sustainable Development and Climate Change: The Sustainable Development Perspective

The interplay between sustainable development and climate change may be also analysed from the sustainable development perspective. In fact, while in the framework of the implementation of the climate change regime, the Parties strived to give an effective and concrete meaning to the reference to the concept of sustainable development contained in the Kyoto Protocol on climate change, from a completely different point of view, the international community started to talk about setting climate change objectives in the framework of the progressive implementation of the concept of sustainable development in international law. In this respect, one may recall the importance attached to such a concept in the framework of the UN Millennium Declaration (2000), when the world’s leaders gathered together stated their resolve to improve the quality of life of poor people through the achievement of global development objectives. To this effect, the Millennium Declaration dedicated a specific section to environmental protection issues, making an explicit reference

18

See Decision 17/CP. 7, in the UNFCCC website: http://www.unfccc.org.

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to climate change, desertification, biodiversity, and forest and water management. The definition of a set of goals, known as the Millennium Development Goals (MDGs), was the most relevant product of the Millennium Declaration and marked an epochal achievement in the history of the United Nations. The MDGs recognize the fundamental connection between energy, environment and sustainable development, by identifying seven main priorities: 1) Eradicate extreme poverty and hunger; 2) Achieve universal primary education; 3) Promote gender equality and empower women; 4) Reduce child mortality; 5) Improve maternal health; 6) Combat HIV/AIDS, malaria and other diseases; 7) Ensure environmental sustainability; 8) Develop a global partnership for development.

As one can see, a specific reference to the protection of the environment and in particular to environmental sustainability is contained in Goal 7. In such a context, in particular, to “ensure environmental sustainability” is meant primarily to achieve the following objectives: 1) integrate the principles of sustainable development into country policies and programs and reverse the loss of environment resources; 2) halve, by 2015, the proportion of people without sustainable access to safe drinking water; 3) have achieved, by 2020, a significant improvement in the lives of at least 100 million slum dwellers. For the purpose of the present analysis, obviously, the most relevant of these three objectives is the first one, where a direct reference to the general duty placed upon each single sovereign State to try and integrate the concept of sustainable development into all relevant country policies and programmes is made clearly explicit. On the basis of such an objective, all States around the world are called to make sustainable development a practicable and workable tool and to pursue the concrete and effective implementation of such a concept in all their national policies and programs, going well beyond the reach of the environmental traditional plans and programmes. A further contribution to the affirmation of the central role of the concept of “sustainable development” and another concrete move towards the convergence of sustainable development goals and climate change objectives was the 2002 Plan of Implementation, agreed at the Johannesburg World Summit on Sustainable Development. Building on the achievements reached until then, it promoted the widest possible application of the concept of sustainable development, as an instrument encompassing economic development, social development and environmental protection goals. To this effect, paragraph 38 of the Plan of Implementation states:

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The United Nations Framework Convention on Climate Change is the key instrument for addressing climate change, a global concern, and we reaffirm our commitment to achieving its ultimate objective of stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system, within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner, in accordance with our common but differentiated responsibilities and respective capabilities […].

Three years later, the 2005 World Summit Outcome, adopted by the UN General Assembly with Resolution 60/1, provided an impressive agenda for global action and reform, where sustainable development objectives were considered a priority. In particular, the UN General Assembly affirmed its own commitment to promote the integration of the three components of sustainable development – economic development, social development and environmental protection – as interdependent and mutually reinforcing pillars, following the same line of reasoning of the Johannesburg World Summit on Sustainable Development, and explicitly stated the link among “tackling climate change, promoting clean energy, meeting energy needs and achieving sustainable development.”19



4 Sustainable Development In Practice Within the Climate Change Regime: The Definition Of Sustainable Development Criteria for CDM Projects

A very interesting example of real convergence between sustainable development and climate change is the duty placed upon the Parties to the Kyoto Protocol on climate change wishing to host into their territory CDM project to develop at the national level specific sustainable development criteria. Such a duty aims at fulfilling the requirement contained in the UNFCCC COP-7 decision cited above, according to which it is up to the host countries to determine whether a proposed CDM project may assist in achieving sustainable development in practice. In this respect, as we will recall, no official guidance was ever issued either by the UNFCCC Conference of the Parties or by the Secretariat to the Convention. However, some inspiration for potential CDM host countries came from other sources, mainly the specific guidelines on CDM criteria published by UNEP back in 2004, which were the output of a specific programme for developing indicators for sustainable development sponsored by the United Nations.

19

See “World Summit Outcome”, UN Doc. A/60/1, 24 October 2005, section on “Sustainable Development: Managing and Protecting our Common Environment”, § 48-56.

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These guidelines are contained in an UNEP document named CDM Sustainable Development Impacts, which lays out a set of general and basic sustainable development criteria for CDM project screening, grouped around the traditional three pillars of sustainable development. The criteria are the following: • social criteria: improve quality of life; alleviate poverty; improve equity; • economic criteria: provide financial returns to local entities; result in a positive impact on balance of payments; transfer new technology; • environmental criteria: reduce greenhouse gas (GHG) emissions and the use of fossil fuels; conserve local resources; reduce pressure on local environments; provide improved health and other environmental benefits; meet local renewable energy portfolio standards and other environmental policies.20 On the basis of such general and basic criteria, each potential CDM host country should be able to identify specific sustainable development (SD) criteria (or SD sub-criteria) to make SD concretely workable at the project level context in the framework of the CDM mechanism. On the basis of the common understanding, the mentioned national criteria (or sub-criteria) should be designed so as to reflect major national development objectives and be operational at the project level context. In this respect, the cited UNEP document proposes a set of more specific SD criteria, which also pertain to the economic, social and environmental dimensions: • economic dimension: generate employment; reduce economic burden of energy imports; provide financial returns to local entities; positive impact on the base of the pyramid (bop); technological change; cost-effectiveness; • social dimension: increase equity; increase energy access; gender issues; education and training; health; alleviate poverty; legal framework; governance; information sharing; • environmental dimension: GHG emission reductions; local environmental benefits, (e.g. related to: air pollution, water, soil, waste); use of exhaustible resources; use of renewable resources; biodiversity.21 The above listed criteria proposed by UNEP have certainly represented in these first few years of development of the CDM regime a major source of inspiration for potential CDM host countries when drafting their own national sustainable development objectives and guidelines, with a view to attracting foreign investment in the energy and environmental sectors, while contributing at the same time to the concrete achievement of sustainability goals at the national level.

20

See UNEP, CDM Sustainable Development Impacts (UNEP, 2004), found at http://cd4cdm.org, particularly the chapter “Sustainable Development in Relation to CDM”, § 4.

21

Ibid.

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Let us look now, by way of example, at some of the most interesting experiences in this sense, recalling first of all the sustainable development criteria adopted by the two most relevant host countries, both in terms of number of CDM projects hosted and in terms of turnover generated by the investments related to those projects, namely China and India, as well as those identified by other relevant CDM host countries, such as Mexico, Georgia and Morocco. The Chinese People’s Republic, probably the most impressive economy in the world, is currently in the process of complying with its sustainable development commitments as bestowed in Agenda 21 and within the China–UN partnership by means of its Five Year Plans for National Economic and Social Development, at its eleventh edition. The 11th Five Year Plan, as its predecessors, represents a blueprint for China’s economic and social development for the next five years and serves to draw and clarify the national strategic intentions on sustainable development, identify the government work in this field and guide the market behaviour accordingly. The national sustainable development strategy along with the sustainable development criteria selected therein have great relevance in the Kyoto Protocol framework since the CDM project has to meet the host country sustainable development criteria in order to be eligible and likely to receive the approval of the project by the competent national authority, named “Designated National Authority” (DNA), under the Kyoto Protocol jargon. The following priority areas of sustainable development are set for CDM implementation in China: • energy efficiency improvement; • development and utilization of new and renewable energy sources; • methane recovery and utilization; In brief terms, the most relevant sustainable development criteria so far identified are the following: • complement national economic and environmental strategy; • promote transfer of technology and financial resources; • ensure sustainable ways of energy production; • increase energy efficiency and conservation; • lead to poverty alleviation through income and employment generation; and • generate local environmental co-benefits.22 The experience of the Republic of India in this context is even more interesting than the Chinese one. In fact, India, which is not only a fast growing economy but also the leading host country of CDM projects in the world, has determined under the auspices of the Climate Change Division of the Ministry of Environment and Forestry of the Government, the basic criteria to be fulfilled by CDM 22

See the website of the Chinese Designated National Authority (DNA) for CDM projects: http://cdm. ccchina.gov.cn/english/.

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project activities, which are very interestingly organized into four categories instead of the traditional three ones. The fourth dimension, in particular, refers to the transfer of clean and sound technologies required by CDM projects to facilitate the achievement of sustainable development goals. So far, the most relevant sustainable development criteria identified by India are therefore the following: • social well-being category: the CDM project activity should lead to alleviation of poverty by generating additional employment, removal of social disparities and contributing to provision of basic amenities to people leading to improvement in their quality of life; • economic well-being category: the CDM project activity should bring in additional investment consistent with the needs of the people; • environmental well-being category: the CDM project should take into account the impact of the project activity on resource sustainability and resource degradation, if any, due to the proposed activity; biodiversityfriendliness; impact on human health; reduction of levels of pollution in general; • technological well-being category: the CDM project activity should lead to transfer of environmentally safe and sound technologies with a priority to the renewable sector or energy efficiency projects that are comparable to best practices in order to assist in upgrading of the technological base.23 North, Central and South American countries, such as, for instance, Mexico, have benefited greatly from pilot projects for GHG emission reductions developed during the ’90s, then named Activities Implemented Jointly (AJI), and nowadays are among the most advanced in terms of working structures for hosting CDM Projects. The Mexican criteria used for analyzing the contribution of CDM Projects to sustainable development include: • fulfilment of national environmental regulations; • contribution to improve the economic and competitive situation of Mexico (e.g. through investment, wealth generation, employment and/or technology transfer); • contribution to maintain or improve the quality of life of communities (e.g. by providing well paid permanent jobs, promoting equality, improving community health, creating or improving local infrastructure, and promoting capacity building).24

23

See the website of the Indian Designated National Authority (DNA) for CDM projects: http://cdmindia. nic.in/host_approval_criteria.htm.

24

See the website of the Mexican Designated National Authority (DNA) for CDM projects: http://www. semarnat.gob.mx.

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Among the former Soviet Republics which are eligible to host CDM projects, the Republic of Georgia deserves special mention. Since it was freed from its old regime in 1993, it has been engaged in a process of deep reform. The key priority areas for sustainable development have been identified in the framework of the so-called Economic Development and Poverty Reduction Programme (EDPRP), which is largely based on the UN Millennium Development Goals. The way towards sustainability for Georgia has been further enhanced by the Kyoto Protocol ratification in 1999, whose implementation was considered part of a global sustainable development scenario. The Georgian requirements in terms of sustainable development criteria for CDM projects consist in the following criteria and sub-criteria: • social criterion » the project has to satisfy the following sub criteria o stakeholder participation; o improved services availability; o intellectual and technical capacity development; • environmental criterion »the project has to generate a decreased pressure on the environment assessed under the following sub criteria: o contribution to reduction of fossil energy resources; o contribution to air quality improvement; o contribution to better water quality; o contribution to soil pollution reduction, waste management, combating erosion, biodiversity conservation and fight against unsustainable use of biomass; • economic criterion » the project has to create a positive effect on economic development to be assessed under the following sub criteria: o regional economy improvement through generation of wealth in disadvantaged areas; o employment generation; o sustainable technology transfer and technical innovation for the country.25 Another interesting case for the present analysis is the Kingdom of Morocco, which is currently undergoing a process of democratic transformation and multisectoral modernization, thus facing the typical problems of developing countries, such as poverty eradication, industrial upgrade and economic growth. Morocco identified its sustainable development commitments, with the support of UNDP and UNESCO, right after the Rio Conference of 1992. By now, the most important strategic documents for the country’s sustainable development are the National Strategy for the Protection of the Environment and SD and the National Plan of Action for the Environment.

25

See the website of the Georgian Designated Authority (DNA) for CDM projects: http://www.climatechange.telenet.ge/.

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They both aim at integrating environmental concerns such as water, soil and air protection as well as biodiversity and natural resources conservation with broader economic and social growth targets, in an attempt to achieve sustainable development in practice. It is not surprising that the highly environmentally friendly Moroccan approach to sustainable development is reflected in the Kyoto Protocol area, where, after the ratification in 2002, the country is an active NonAnnex I Party. Morocco has selected the following national sustainable development criteria for a CDM project eligibility: • contribution to global climate change attenuation through CO2 equivalent gases emission reductions; • contribution to local environment protection through significant greenhouse gases reduction; • contribution to increase national employment rate; • positive effects on national macro and micro economy; • contribution to national economy stability; • contribution to “best technology” transfer; • contribution to energy and other natural resources conservation.26



5 Conclusion: Can CDM Projects Contribute to Achieving Sustainable Development?

In conclusion, there is a basic question which needs to be answered: through the adoption and implementation of sustainable development criteria, can CDM projects really contribute to achieving sustainable development in CDM host countries? To address such an issue, one needs first of all to remember the very high annual rate of growth of many developing countries. Often, however, they are unable to pursue sustainable development objectives in the framework of their developmental policies. At the same time, climate change scenarios project an increase of GHG emissions around the world in the next few decades, with developing countries possibly exceeding industrialized countries very soon, that is, in 2010–2020.27 Meanwhile, industrialized countries which have agreed to limit, and in most cases effectively reduce, their GHG emissions by 2008–2012, pursuant to the Kyoto Protocol on climate change, now have a strong interest in running CDM projects in developing countries in order to meet their Kyoto Protocol limitation and reduction commitments at lower costs. 26

See the website of the Morocco Designated National Authority (DNA) for CDM projects: http://www. mdpmaroc.com

27

See UNFCCC Report, Greenhouse Gas Emissions Data for 1990 – 2003, November 2005; Corrigendum to the Report January 2006.

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There is therefore a great room in this context for finding effective synergies between sustainable development and climate change objectives, through the definition and fulfilment of sustainable development criteria (“SD criteria”) in the realization of CDM projects in developing countries. CDM projects may in fact prove to be an excellent driver of economic growth in such countries. And with a little effort by host countries in devising SD criteria that also pursue, for instance, sustainable development goals and developmental objectives of local communities, they may also present a very valuable opportunity for developing countries to achieve sustainable development in practice. In this sense, provided that SD criteria are correctly identified at the national level in CDM host countries and effectively enforced against potential investors, CDM projects may contribute to several sustainable development needs of such countries, such as: • increased energy efficiency and conservation; • transfer of technologies and financial resources; • local environmental benefits, e.g. cleaner air and water; • local environmental side benefits, such as health benefits from reduced local air pollution; • poverty alleviation and equity considerations through income and employment generation; • sustainable energy production; • private and public sector capacity development.28 In addition to that, host countries authorities may also use the opportunity stemming from CDM projects to contribute to the achievement of developmental objectives for local communities, for instance those related to rural development, energy security, education and capacity building, social and health services, and so on.29 To this effect, in order to make the hosting of CDM projects really contribute to achieving sustainable development in practice at the national level, host countries should try to use SD criteria as a tool on the one side to promote synergies between developmental objectives, both at national and local levels, and, on the other, to achieve social and environmental benefits. In such a way, CDM projects proposed by foreign investors could be designed and implemented so as to maximize gains for host countries, with respect to all the three dimensions of sustainable development, while at the same time helping more industrialized countries pursue their specific objectives related to the implementation of the Kyoto Protocol, consisting in the reduction of GHG emissions, at lower costs, through the performance of CDM projects in developing countries.

28

See UNEP, op. cit., especially “The SD Perspective of the CDM”, § 2.2.

29

Ibid.

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Should this happen in practice, the CDM would represent one of the very first cases of an economic instrument to be applied with success in a very complex legal context, such as that of the climate change regime. However, so far, during the first few years of operation, the Kyoto Protocol system and related CDM mechanism have given rise to some legitimate doubts that are still awaiting a definitive solution. For instance, the initial practice related to CDM projects seems to show that promoting industrialised States and interested business quite understandably tend to select those projects that are easier to carry out, less risky in terms of expected outcome and more profitable in purely economic terms, without taking too much into account the sustainable development dimension of the projects’ activities.30 This approach may be sometimes accompanied by a quite relaxed attitude by the authorities of the host country, which, even if proper SD criteria for hosting CDM projects in their respective country are in place, may well decide not to enforce them very strictly, giving instead priority to purely economic interests, rather than opting for projects which seem to be able to combine in a more efficient way the three sustainable development dimensions. Unfortunately, the CDM mechanism is designed in a way which makes the host country the only responsible authority for the selection of the most appropriate SD criteria as well as the only judge of the responsiveness of the selected projects to those criteria. Therefore, it is quite possible that certain countries may not see SD criteria as an opportunity to pursue clean development, but rather as an additional burden to economic development, which should be overcome. In this sense, therefore, the legal regime which governs the CDM projects at international level could certainly be improved should the relevant practice show that SD criteria are not taken very seriously and meaningfully within the framework of CDM projects, possibly by imposing on host countries some “minimum” SD criteria to be respected across the board. Who should impose such “minimum” SD criteria, where their exact content should be drawn from and how should they look like are still open issues which 30

The first CDM project was registered in November 2004, and a total of 70 projects had been registered by mid-January 2006. These projects are expected to generate some 200 million tons of certified emission reductions. By that time, more than 550 projects had entered the pipeline in the areas of renewable energy (57 per cent of projects and 18 per cent of certified emission reductions), energy efficiency (14 per cent of projects and 5 per cent of certified emission reductions), fuel switching (4 per cent of projects and 1 per cent of certified emission reductions), methane emission reduction and cement production efficiency improvements (23 per cent of projects and 24 per cent of certified emission reductions), and hydrofluorocarbon and nitrous oxide emission reduction (2 per cent of projects and 52 per cent of certified emission reductions). [As to their geographical distribution,] more than half of the projects are in the Asia and the Pacific region and nearly 40 per cent are in the Latin America and Caribbean region, but only 2.5 per cent are in Africa. (Excerpt from Report of the Secretary-General, Energy for sustainable development, industrial development, air pollution/atmosphere and climate change, E/CN.17/2006/3, 17 February 2006).

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need further analysis, but I am convinced that the Conference of the Parties, serving as the Meeting of the Parties to the Kyoto Protocol (COPMOP), in the framework of its competence of supreme body to the Protocol, as well as of governing authority of the CDM mechanism, should have the authority to adopt some binding guidelines to this effect. However, should this prove unacceptable to the Parties, such proposed “minimum” criteria might also be issued by the Secretariat, in the form of a non-binding, but highly recommended, set of guidelines. Another question which arises from the analysis of the CDM mechanism, as it is presently shaped within the climate change legal regime, refers to the possibility to reproduce in other sectors the same mechanism or a similar one, based on the assumption that there might be some “win-win” instruments, trying to pursue their own specific goals while at the same time contributing though their performance to the broader objective of sustainable development. In other words, the following question should be asked: Might the CDM approach, which integrates sustainable development considerations within the climate change regime through the SD criteria, be reproduced in other areas of law in different contexts? Such a question still awaits a proper answer, which ideally could come from the writings of scholars, from the activity of policy-makers or from the international practice of States. Finally, a last issue deserves attention when analysing the CDM mechanism and its concrete functioning. It is the issue which concerns the position and the effective importance and weight of the environmental protection goals within the CDM framework, in comparison with the possibly contrasting economic and social interests. Is the CDM mechanism, which was initially conceived within the framework of a international treaty devoted to the protection of the environment, such as the Kyoto Protocol on climate change, properly and concretely pursuing environmental protection goals, besides satisfying other interests, or is the environmental dimension becoming so marginal or minimal that the environmental protection genesis of the CDM may be said to have been forgotten by the subsequent development of the mechanism? This is a very serious issue, to which proper attention should be devoted in the international legal debate surrounding the CDM in view of a possible amendment to its governing rules in the years to come, possibly related to the post-2012 reshaping of the Kyoto Protocol which is presently under discussion.

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Bibliography Bothe (2005) M. Bothe, E. Rehbinder (eds.), Climate Change Policy, Utrecht, 2005, Eleven International Publishing.

Brundtland Report (1987) Report of the World Commission for Environment and Development, Our Common Future, OUP, Oxford, 1987.

Cordonier Segger & Khalfan (2004) M.C. Cordonier Segger & A. Khalfan, Sustainable Development Law, Oxford, 2004, Oxford University Press.

Cordonier Segger & Weermantry (2004) M.C. Cordonier Segger & Judge C.G. Weeramantry (eds.), Sustainable Justice, Leiden, 2005, Martinus Nijhoff Publishers.

Dalal-Clayton, Bass, Robins and Swyderska (1998) D.B. Dalal-Clayton, S. Bass, N. Robins and K. Swyderska, Rethinking Sustainable Development Strategies. Promoting Strategic Analysis, Debate and Action, in Environmental Planning Issues No.6, International Institute for Environment and Development, London, 1998.

Douma, Massai and Montini (eds) (2007) W. Th. Douma, L. Massai and M. Montini (eds.), The Kyoto Protocol and Beyond, Cambridge, 2007, T-M-C-Asser Press.

Francioni (2001) F. Francioni, Environment, Human Rights and the Limits of Free Trade, in F. Francioni (ed.), Environment, Human Rights and International Trade, Oxford, 2001, Hart.

Freestone and Streck (2005) D. Freestone, C. Streck, Legal Aspects of Implementing the Kyoto Protocol Mechanisms, Oxford, 2005 Oxford University Press.

French (2005) D. French, International Law and Policy of Sustainable Development, ,Manchester, 2005, Manchester University Press.

Handl (1990) G. Handl, Environmental Security and Global Change: The Challenge to International Law, in Yearbook of International Environmental Law, Vol. 1, 1990, p. 25.

Lowe (1999) V. Lowe, Sustainable Development and Unsustainable Arguments, in A. Boyle & D. Freestone (eds.), in International Law and Sustainable Development: Past Achievements and Future Challenges, Oxford University Press, 1999.

Montini (2001) M. Montini, La Necessità Ambientale nel Diritto Internazionale e Comunitario, Padova, Cedam, 2001.

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Pintér, hardi and Bartelmus (2005) L. Pintér, P. Hardi and P. Bartelmus, Indicators of Sustainable Development: Proposals for a Way Forward. Paper presented at Expert Group Meeting on Indicators for Sustainable Development, 13-15 December 2005, UNDESA, New York.

Sands (2003) P. Sands, Principles of International Environmental Law, Cambridge University Press, 2003.

Sands (1999) P. Sands, Sustainable Development: Treaty, Custom and the CrossFertilization of International Law, in A. Boyle & D. Freestone (eds.), International Law and Sustainable Development: Past Achievements and Future Challenges, Oxford 1999, Oxford University Press.

Sands (2000) P. Sands, Environmental Protection in the twenty-first Century: Sustainable Development and International Law, in R.L. Revesz, P., Sands, R.B. Stewart (eds.), Environmental Law, the Economy and Sustainable Development, Cambridge 2000, Cambridge University Press.

Schrijver & Weiss (2004) N. Schrijver & F. Weiss, International Law and Sustainable Development, Leiden 2004, Martinus Nijhoff Publishers.

Weiss (1999) B. Weiss, Our Rights and Obligations to Future Generations for the Environment, 84 AJIL 1990, p.1999.

Yamin and Depledge (2004) F. Yamin, J. Depledge, The International Climate Change Regime, Cambridge 2004, Cambridge University Press.

Table of Cases •G  abcikovo• Nagymaros case, ICJ Decision, 25 September 1997. •S  hrimps/Turtles case, Decision of the WTO Appellate Body, WT/ DS58/AB/R, 1998.

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Climate Change and the Mandate of Sustainable Development: Observations from a Legal Perspective Christina Voigt

chapter 6.2



climate change and the mandate of sustainable development:

1 Introduction

Climate change touches at its very core two issues of fundamental importance: humankind’s interaction with and relation to nature and humanity’s relationship with itself. The principle of sustainable development addresses these fundamental issues, too. The challenge of climate change, however, not only lifts these relationships into a real-world scenario, but urgently requires a practical answer. In other words, climate change demands of the international community that it defines what it means by sustainable development. Failure to reconcile the principle of sustainable development and climate measures could threaten elementary aspirations of humankind, including equitable governance structure and human security. In this paper I argue that the response of the international community to climate change is indicative of the degree to which sustainable development has been embraced. The design of the international climate change regime, consisting of the UNFCCC and the Kyoto Protocol, gives evidence of this. At the same time, the mandate of sustainable development is wider and stronger than contemporarily reflected, defining a continuous need for and design of a comprehensive and effective climate regime. Phrased in a slightly different way, it is crucial for the success of the climate change regime that the communities of the world come to an agreement regarding the principle of sustainable development. Only solutions that are based on commitments of the entire community have any real chance of ‘tackling’ climate change. In order to achieve worldwide consensus and commitment, it is argued, these solutions need to be informed by the principle of sustainable development. At the same time, no progress can be considered sustainable if it does not address the threat of a changing global climate. The paper is divided into three parts. In part I, I attempt to provide a definition of the principle of sustainable development. The second part will show how the principle is already reflected within the structure of the existing international legal regime on climate change. The last part reflects over the consequences of this direct and reciprocal relationship between climate change law and the principle of sustainable development, before rounding off with some options for the sustainable development of the climate regime.



2 Sustainable Development in the Context of Climate Change

The likeliest starting point for any exercise in defining sustainable development must be that given by the World Commission on Environment and Development (1987): ‘Sustainable development is development that meets the needs of the present without compromising future generations to meet their

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own needs.’ Ever since its ‘inception’ by the international community, it has been incorporated into a myriad of binding international and national treaties and conventions, non-binding soft-law declarations and documents, governmental policy statements and non-governmental statements. The question is whether all these references mean different things or do they share a common perception? Sustainable development taken literally means development that can last. Development in this context is a ‘passage from a less humane situation to a more humane situation’. Development can thus be seen as essentially a matter of civilization and humanization. It is a transformation process of the economic, social, political and mental structures of any given society with regard to the erga omnes access to the necessary constituents of what passes for an acceptable life, including material and spiritual welfare. Unlike economics, this view defines progress not (exclusively) in terms of increase in Gross Domestic Product. Still, development in order to be sustainable essentially means that the very preconditions for human activity and welfare must be respected and protected. These conditions are based in the final instance on the earth’s capacity to support life. This capacity, however, is dependent on functioning natural systems. Human societies derive a wide array of important life-supporting and economic benefits from the ecosystems in which they exit. Scientists use the term ‘ecological’ or ‘ecosystem services’ in reference to the conditions and processes by which natural ecosystems sustain and fulfil human life.  The functioning of these essential conditions thus constitutes the core requirement for a durable and humane (global) society. ‘At a minimum,’ the World Commission stated, ‘sustainable development must not endanger the natural systems that support life on Earth,’ adding that

*

 Dr. Christina Voigt, LL.M. (Auckland), is post-doc research fellow at the University of Oslo, Department of Public and International Law, Norway. 

WCED (1987).

 

Lebret, Dynamique concrète du développement, Économie et Humanisme, Les éditions ouvrières (1967).

An ecosystem is a dynamic complex of plant, animal and micro-organism communities and the nonliving environment interacting as a functional unit.



Ecosystem services are thus the functions carried out by ecosystems, including the benefits people obtain. The 2005 Millennium Ecosystem Assessment systemizes them into provisioning services such as food, water, timber and fibre; regulating services that affect climate, floods, disease, wastes, and water quality, cultural services that provide recreational, aesthetic, and spiritual benefits, and supporting services such as soil formation, photosynthesis and nutrient cycling. The human species while buffered against environmental changes by adaptation, culture and technology, is fundamentally dependent on the flow of ecosystem services. The conservation of healthy ecosystems is thus a precondition for aspirations and well-being of humankind. See Millennium Ecosystem Assessment: Living Beyond Our Means, 2005, 3.

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there were objective limits to what nature could bear. These systems are generated by a complex interplay of biological, geological, and chemical cycles driven by solar energy and operation across a wide range of spatial and temporal scales. The most essential natural system to human welfare, security and life is the atmosphere – a fragile mix of gases which creates liveable conditions on Earth. Moreover, from the dawn of civilization, human beings have been used to a relatively stable global climate. Climatic variations which humans have never experienced will therefore have a significant impact on the way the global human mega-organism is currently organized and governed. In its 2007 Fourth Assessment Report the Intergovernmental Panel on Climate Change (IPCC) mapped out the likely effects of a changing climate on almost every facet of society. The potential effects are broad and far reaching. The IPCC projects that the average surface temperature could increase by between 1.4 and 6.4 °C by the year 2100 compared to 1990 temperatures. In Europe temperatures are expected to rise between 2.0 and 6.3 °C by 2100 if nothing is done that can significantly reduce emissions. The impacts of such an increase are far reaching. According to the scenarios published by the IPCC, they include more frequent and destructive extreme weather events such as droughts, floods, hurricanes, directly threatening the personal safety and security of humans. Rising sea levels between 9 and 88 cm will probably damage and even inundate communities, cities, and entire island nations, directly linking climate change effects to issues of state sovereignty and survival and to global security, as climate refugees seek shelter, and peoples migrate in increasing numbers etc. The 2005 Millennium Ecosystem Assessment identified the ‘chemical experiments humans have been conducting on the atmosphere for the past century and a half’10 as the change of a natural system with the greatest potential to alter the natural infrastructure of the Earth and threaten human livelihoods. Human activity is putting such a strain on the natural functions of the Earth that the ability of the planet’s ecosystems to sustain future generations can no longer be taken for granted. Two thirds of the services provided by nature to humankind are in decline worldwide. Unambiguously, the Assessment concludes, in effect, the benefits reaped from our engineering of the planet have been achieved by running down natural capital assets. In many cases, it is literally a matter of living on borrowed time.11 

WCED, 1987, 44-5.

 

IPCC (2007) (http://www.ipcc-wg2.org/).

Commission of the European Union (2005).



IPCC (2007).



For a ‘worst case scenario’, see: Schwartz and Randall, 2003, Public Report, prepared by Global Business Network (GBN) for the US Department of Defence.

10 11

Ibid.

Ibid 4.

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Climate change is projected to exacerbate threats to human health, particularly in lower income populations. Prevalence of water- or insect-borne diseases is likely to rise; there might be frequent disruption of agriculture in some regions due to prolonged droughts, water shortages and sea-level rise. An increase in extreme weather events, i.e., rare or unusual weather for a particular place or region, is predicted, which inevitably will lead to economic losses and increased vulnerability. Beside these obvious and direct challenges, there are a number of far more complex and ecologically interlinked changes whose effect on human well-being could be drastic, in particular with regard to food security. Each of the aforementioned impacts is severe; it is, however, their cumulative effect that will have incalculable costs, including human and social, environmental and economic costs. These costs are of incomparable magnitude, encompassing not only loss of life and dislocation of populations, but geopolitical instability and a pronounced decrease in the quality of life caused by the disruptive effect of climate change to the functioning of ecosystems.12 These challenges may not be equally distributed across human populations and State borders, but are most likely to affect those States and peoples that not only have done least to cause anthropogenic climate change, but have the least human and financial resources and technologies to deal with the dramatically detrimental effects. Some of the countries that are expected to suffer from devastating changes are already struggling to address famine, disease and political instability with limited resources. The threat will grow increasingly severe with the coming decades.13 The negative effects on human well-being of climate change are primarily a future concern – though the implications are already palpable today. No other global issue has the magnitude and scope of climate change and no other issue relates so closely to human conduct both as a matter of cause and of effect. Moreover, no other issue challenges ideas of global justice and fairness, equity and equality in the intergenerational and intragenerational sense in such a profound manner. It is in this context that the international community is urged to see the prevention of dangerous climate change ‘as a precondition for prosperity and a public good, like national security and public health.’14 The apparent, albeit complex, symbiosis of the challenge of tackling climate change and sustainable development has been captured eloquently by the Intergovernmental Panel on Climate Change in its 2001 Third Assessment Report: The climate change issue is part of the larger challenge of sustainable development. As a result, climate policies can be more effective when consistently embedded within broader strategies designed to make national and regional development paths more sustainable. This occurs because the impact of climate variability and change, climate policy responses, and associated socio-economic development will affect the ability of countries to achieve sustainable develop12 13

IPCC (2001); The International Climate Taskforce (2005) 1.

IPCC (2007).

14

International Climate Taskforce, (2005) 1.

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ment goals. Conversely, the pursuit of those goals will in turn affect the opportunities for, and success of, climate policies. In particular, the socio-economic and technological characteristics of different development paths will strongly affect emissions, the rate and magnitude of climate change, climate change impacts, the capacity to adapt, and the capacity to mitigate.15

Also the most recent Fourth Assessment Report of the IPCC confirms the direct link between strategies adressing climate change and sustainable development: Making development more sustainable can enhance mitigative and adaptive capacities, reduce emissions, and reduce vulnerability, but there may be barriers to implementation. On the other hand, it is very likely that climate change can slow the pace of progress towards sustainable development. Over the next halfcentury, climate change could impede achievement of the Millennium Development Goals.16

Similarly, the 2001 UNFCCC Marrakech Ministerial Declaration assumes a close connection between measures undertaken within the climate regime and the aim of sustainable development. The Preamble of the Declaration expresses the belief of the negotiators that ‘addressing the many challenges of climate change will make a contribution to achieving sustainable development.’17 The importance of successful climate change strategies as one of the main issues in the context of sustainable development was reaffirmed at the 2002 Johannesburg World Summit on Sustainable Development. Recalling the preambular wording of the Climate Convention, the ‘Plan of Implementation’ states that ‘change in the Earth’s climate and its adverse effects are common concern of humankind’ and refers to the UNFCCC as being the key instrument for addressing climate change, a global concern and affirms the commitment to achieving its ultimate objective of stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system, within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner, in accordance with our common but differentiated responsibilities and respective capabilities.18 The analysis of sustainable development in the context of the climate regime aims at providing a better, more practical understanding of this concept. At the same time, there is a positive feedback loop. A better understanding of sustainable development is not only a desirable side-effect of this analytical endeavour, 15

IPCC Synthesis Report (Watson et al., eds., 2001) 4.

16

IPCC, Fourth Assessment Report, Climate Change 2007: Synthesis Report, Summary for Policymakers, December 2007, available at: http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr_spm.pdf.

17

FCCC/CP/2001/13/Add.1, 3f, Preamble, para 3.

18

See Report of the World Summit on Sustainable Development, UN Doc. A/CONF.199/20., PoI, para 38.

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it is a necessary precondition for the success of the international climate regime. As long as allegations of conceptual uncertainty surrounding sustainable development remain, efforts to create an international consensus on climate change will be frustrated, if not jeopardized. Altogether, it is clear that climate change is of eminent importance for the sustainable development (civilization and humanization) of the international community. The conditions necessary to keep the composition of accumulated gases in the atmosphere at levels that would not pose a threat to the stability of the global climatic system are thus a precondition for development to be sustainable. This was aptly recognized by the 189 Member States of the UNFCCC when they committed themselves to the objective of the convention. Article 2 UNFCCC states that it is the ultimate objective of the Convention ‘to achieve ... the stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.’ Recent research identifies the potential impact on humans of dangerous anthropogenic interference with the climate system. Here, research indicates that the overall objective should be translated into a 2°C target, meaning that the increase in global average temperature (as an effect of the interference with the climatic system) above 2°C of the pre-industrial average would have dire direct and indirect implications for human welfare.19 The 2°C target can also be translated into an atmospheric concentration of 450 ppm (parts per million) CO2 equivalents.20 Such concentration levels will 19

Recent studies indicate that a rise of 1°C above pre-industrial levels will cause up to 10 per cent of ecosystem areas worldwide to shift. While some forest ecosystems will exhibit increased net productivity, they will also be exposed to increased fire frequency and pest outbreaks. Biodiversity hotspots and protected areas of global importance are already suffering losses. Range shifts of species and higher risk for some endangered species are likely. An increase of 1 to 2°C will lead to shifts of up to 15-20 per cent of ecosystem areas worldwide, while increases in 2°C and above will lead to shifts above 20 per cent. Global loss of coastal wetlands may exceed 10 per cent and there is a risk that climate change could virtually wipe out some protected areas of global importance (See Communication from the Commission of the European Union, Winning the Battle Against Global Climate Change, COM[2005] 35 final, 12-13).

20

See Metz et al., Towards an Equitable Global Climate Change Regime: Compatibility with Article 2 of the Climate Change Convention and the Link with Sustainable Development (2002) 2:2-3 Climate Policy, 211-230. This target has generally been accepted by the EU. EU Council Conclusion of December 20, 2004 “REAFFIRMS that, with a view to meeting the ultimate objective of the Convention to prevent dangerous anthropogenic interference with the climate system, overall global mean surface temperature increase should not exceed 2°C above pre-industrial levels’, para 2. It was also repeated at the EU Winning the Battle Against Climate Change, 2005. According to the IPPC, this scenario is possible to achieve if global anthropogenic emissions drop well below 1990 levels within the next few decades and continue to decrease steadily thereafter. IPCC, Climate Change 2001: The Scientific Basis. Contribu-

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require urgent and drastic reductions in greenhouse gases.21 If these targets are accepted ‘then the absolute limit of what is tolerable in the atmosphere acts as the baseline for discussions on what greenhouse gas reductions are required to protect the ecology’.22 At the same time, following our argumentations, the 450 ppm limit defines the threshold between sustainable and unsustainable development. While there might be other dimensions and components of sustainable development, in practical terms it means remaining within the limit set by safe atmospheric GHG concentrations.



3 Sustainable Development as Reflected in the International Climate Change Regime

How this goal is to be achieved is, of course, open to debate. Yet a consensus seems to be emerging on giving the highest priority to measures that seek to reduce the emission of greenhouse gases into the atmosphere when defining sustainable development strategies. The international climate regime, consisting of the 1992 UNFCCC and the 1997 Kyoto Protocol, is the first multilateral attempt to approach climate change. At the same time, it is an affirmation of sustainable development in international law.23 The close relationship between the structure of the climate regime and the requirements of sustainable development can be deduced from components of the climate regime that directly or indirectly address different aspects of sustainable development. Of these references it is in particular the indirect ones which allow for a more comprehensive conclusion on the linkage between sustainable development and climate change strategies.



3.1 References in the UNFCCC

Article 3 UNFCCC on ‘Principles’ notes that ‘The Parties have a right to, and should, promote sustainable development’ (para 4) while para 5 calls for ‘sustainable economic growth and sustainable development in all Parties, particularly developing country Parties’. tion of Working Group I to the Third Assessment Report of the Intergovernmental Panel on Climate Change (Houghton et al., eds. 2001) 75. Similarly, O’Neill and Oppenheimer, who suggest that this goal can be achieved only if there is no delay in reducing greenhouse gas emissions in industrialized countries, O’Neill and Oppenheimer (2002) 1972. 21

The IPCC suggests that a 70 per cent reduction of global emissions of CO2 from what was being emitted in 1990 is required to meet this stabilization goal. IPCC, 2001, 12.

22 23

Gillespie (2006) 127.

Sands (1992) 304; French (2005) 274.

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More importantly, Article 2 refers to a time frame for dealing with climate change which allows economic development to proceed in a sustainable manner. Article 2 states that [t]he ultimate objective of this Convention and any related legal instruments that the Conference of the Parties may adopt is to achieve, in accordance with the relevant provisions of the Convention, the stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.

Meeting this objective will clearly entail radical changes in human behaviour in the shorter and longer term. Humankind does not have much experience in making long-term predictions and commitments such as those demanded by sustainable development. The challenge of climate change, however, demands the self-imposition of stringent patterns of behaviour on States, the impact of which will mostly be perceived by future generations.24 Thus, the objective of the climate regime as such can be seen as a regulatory attempt to define a sustainable development path that, by seeking to meet the needs of the present generations, does not compromise freedom of future generations to decide for themselves.



3.2 Kyoto Protocol and Subsequent Documents

The Kyoto Protocol gives even stronger credentials to sustainable development. The preambular reference to the ultimate objective of the Convention – which follows already from Article 2 of the Convention – incorporates the concept into the Protocol when it requires enabling ‘economic development in a sustainable manner’.25 In addition, explicit reference is made in Article 2.1(a) of the Protocol. It sets out a list of policies and measures to be implemented and/or further elaborated, both individually and co-operatively, by Annex I Parties (i.e. developed country Parties), in achieving their quantified emission limitation and reduction commitments under Art. 3 “in order to promote sustainable development’’. These policies and measures include – inter-alia – enhancing energy efficiency, promotion, research, development and increased use of new and renewable form of energy, of carbon dioxide sequestration technologies and of advanced environmentally sound technologies. 24 25

See Voigt (2005) 112-37.

Art. 2 UNFCCC notes explicitly “this Convention and any related legal instrument”. Such an instrument is, inter alia, any adopted Protocol under Art. 17 UNFCCC.

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One could argue that all obligations listed in Article 3 promote sustainable development insofar as cutting greenhouse gas emissions to 1990 levels by the assigned amounts (targets) and demonstrating progress by 2005 are in themselves requirements of sustainable development in the sense that they aim at protecting the climate system.26 Article 10 of the Protocol urges on all Parties to implement their commitments as laid down in Article 4 of the UNFCCC, i.e. financial assistance to developing countries, technology transfer and the special role of developing countries in the implementation of the Convention, in order to achieve sustainable development. Moreover, Article 12.2 states the purpose of the Clean Development Mechanism (CDM). The CDM is a flexible instrument which allows Annex I Parties to carry out GHG reduction projects in developing countries for which the Party receives Certified Emission Reduction units which can be used for compliance with their obligations under Art. 3 of the Kyoto Protocol. The CDMs purpose is to ‘assist Parties not included in Annex I in achieving sustainable development’, in addition to assisting Annex I Parties in meeting their emission limitation and reduction commitments and contributing to the Convention’s ultimate objective.27 This reference to the concept is a good example of what is often referred to as a ‘win-win’ situation where the solution of a specific problem, e.g. greenhouse gas emission reduction, is linked to the wider goal of sustainable development. This last example could be indicative of the differences between the promotion of greenhouse gas reduction and the promotion of sustainable development. However, given the fact that countries not included in Annex I of the Convention have no quantified obligation to reduce their greenhouse gas emissions, the reference to sustainable development needs to be understood differently. Rather than indicating diverse development goals, the association with sustainable development in this context directly transposes the objective of a carbonreduced economic development into decision-making in these countries. This goal states basically the factual consequences of a valid CDM project. Requiring CDM projects to meet sustainable development targets in host countries came about because developing countries wanted to ensure that CDM projects were in line with their own development priorities.28 In general, it is left to the host country to set up its own criteria. It remains therefore important for host countries to define sustainable development in their national contexts in a way that is compatible with an internationally accepted definition. Finally, the Marrakech Accords add further emphasis to our conclusions concerning the importance and understanding of sustainable development in 26 27

Arts and Gupta, in Schrijver and Weiss (eds.) (2004) 524.

Some authors contend that the reference to sustainable development in Art. 12 was not necessary, “since a general obligation for all policies to be consistent with sustainable development already exists”. See Arts and Gupta, 2004, 525.

28

See Huq and Reid in Freestone and Streck (eds) (2005) 231.

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the Kyoto Protocol. The Marrakech Declaration states that decisions to deal with climate change may contribute to sustainable development.29 More clearly, it urges exploration through various channels of the synergies between the United Nations Framework Convention on Climate Change, the Convention on Biological Diversity, and the United Nations Convention to Combat Desertification ... in order to achieve sustainable development.30

In particular, capacity-building in developing countries and countries with economies in transition, as referenced by the Declaration, are means to promote sustainable development. Building capacity will, in a coordinated manner, assist them in promoting sustainable development while meeting the objective of the Convention. Furthermore, the Declaration demands technological assistance and capacity building to ‘effectively integrate vulnerability and adaptation assessments into sustainable development programmes.’31 Sustainable development is further referred to in provisions on adaptation, land-use and forestry activities and the flexibility mechanisms.32 It can safely be said that sustainable development is generally prioritized and that all measures undertaken to combat climate change are linked to the achievement of sustainable development.33 By including sustainable development in the introductory clause of Article 2 of the Kyoto Protocol, all policies and measures implemented by Annex I Parties are subject to the requirement of consistency with sustainable development. Certain specific, innovative elements included in the Kyoto Protocol also make the implicit connection to sustainable development clear.



3.3 Indirect References

Sustainable development is not only explicitly mentioned in the legal documents of the climate regime, it is also implied in the various concepts and the very structure and design of the regime.



3.3.1 Intergenerational Dimension

The intergenerational aspect of the climate change regime has to do with the fact that the effect of action taken to mitigate climate change today may not be felt for many decades. Such action concerns primarily mitigation, in the absence of which the effects of continuing climate change are likely to become more severe, affect29 30 31

Decision 1/CP7.

Ibid, para 3.

Ibid, 17.c.

32 33

See generally the decisions of CDM 17/CP. 7.

See Arts and Gupta, 2004, 533.

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ing future generations disproportionately. This connects to the ethical issue of duty to save future generations from detrimental impacts. In this context the reference to climate change in UNFCCC’s Preamble as a ‘common concern of humankind’ indicates the universality of the issue.34 Measures to address this common concern should be based on a supreme principle of duty. Because present and future generations are fundamentally equal, they are in principle entitled to the same (stable) climatic condition to the extent that the stability is affected by human conduct. It follows that present generations, represented by States, should abstain from actions that threaten climatic stability and take actions to protect a safe climate system. Having said that, absolute stability of climate conditions is impossible to achieve not only because of natural variation, but because changes are already apparent and likely to continue however drastic the mitigation measures. Considerations of intergenerational justice have been included in the climate regime. They are mainly based on five concerns, namely (i) the seriousness and urgency of the problem; (ii) the potential for irreversible damages; (iii) the need for new ways of thinking about new challenges; (vi) the possibility for developing acceptable measures for accountability; and (v) the degree to which the problem serves as a useful prototype for analysis of crises that occur in other contexts.35 These considerations can be identified in the design of the international climate regime. Intergenerational justice concerns have been explicitly recognized both in the UNFCCC and the Kyoto Protocol. In the Convention several references are made to future generations. Article 3.1 states that ‘the Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities.’ Closely linked with inter-generational justice is the precautionary principle, one of the guiding principles of the climate regime.36 Article 3.3 of the UNFCCC obliges Parties to take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost effective so as to ensure global benefits at the lowest possible cost.

34

This has to be seen together with the fact of almost universal ratification of the Convention. As of December 2007 198 states have ratified the document. (www.unfccc.org).

35

Redgwell, in Churchill and Freestone (eds.) (1991) 54.

36

On the precautionary principle see: Kiss and Shelton (2004) 206-211; Sands (2003) 266-279; De Sadeleer (2002) 91-223; and Trouwborst (2002).

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The precautionary principle is based on the intrusion of uncertainty. Anticipatory action is envisaged as a response to risk of harm. Rather than requiring irrefutable proof that certain damage will occur, the principle urges Parties to ‘act first, and then ascertain the facts.’37 The precautionary principle incorporates into the climate regime an understanding of the threat of a changing climate as so severe and irreversible a phenomenon that (despite the lack of scientific certainty on several aspects of climate change) action to mitigate climate change is perceived as necessary. Given the fact that mitigation will not have an immediate effect, probably not for many years, intergenerational concerns are clearly justified. The principle of precaution can in this regard be recognized as a constituent of the principle of sustainable development.38 In sum, the protection of the climate system by the present climate regime is motivated by the benefit future generations might derive from measures undertaken today.39



3.3.2 Differentiation and Intragenerational Equity

Climate change is a global problem, but not all contribute equally to it. Although it doesn’t matter to the atmosphere where the gases are emitted, there are large differences between States regarding their historic and present greenhouse gas emissions. So far, the development paths of industrialized countries have caused most of the anthropogenic greenhouse gas emissions that are currently concentrated in the atmosphere and that already are impacting on climate stability. Future climatic changes will however be equally if not largely determined by the developmental patterns of the currently less developed countries, for example, India, China and Brazil. The impact of rising greenhouse gas concentrations will differ from region to region too. Developing countries are in general more vulnerable to climate change than industrialized countries, although differences exist also among the former. To account of these contributive and distributional differences, the entire climate regime in its current form operates basically on the principle of equity. Equity is applied to the stringency of commitments of countries included in Annex I of the Convention and those that are not. 40 By adopting a differentiation 37

De Sadeleer, (2002) 91. Also for a historical overview see: Voigt (2002) 43-96.

38

See for a strong proposition of the precautionary principle in this respect, Dissenting Opinion of Judge Weeramantry to the Order of the Court regarding the Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s of December 20 1974 in the Nuclear Tests (New Zealand v. France) Case, 22 September 1995.

39

See UNFCCC Preamble, Art. 3.1 and UN General Assembly Resolutions 43/53 of 6 December 1988, 44/207 of 22 December 1989, 45/212 of 21 December 1990 and 46/169 of 19 December 1991 on the protection of the global climate for present and future generations.

40

See Yamin (1999) 265-274.

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approach, the regime recognises States’ ‘common, but differentiated responsibilities and respective responsibilities and their social and economic conditions’, and that measures to tackle climate change will have to be in accordance with those circumstances. 41 With regard to climate change this means that each State has a responsibility to protect the climate system. In this regard, common responsibility and common concern express both a sense of ‘commonality’ regarding the climate problem and its consequences. 42 Certain legal responsibilities are attributable to all States in respect of the stability of the climatic system. The legal interest in the stability of the climate system includes a legal responsibility to prevent damage to it. However, one should take account of each State’s special circumstances, responsibilities, capabilities and needs. ‘Differentiated responsibilities’ require historical, social, economic, geographic, contextual, and other circumstances to be considered when attributing roles and responsibilities under international law. 43 The UNFCCC urges in Articles 3.1 and 4.2(a) developed country Parties to ‘ take the lead’. The concept of common but differentiated responsibilities becomes evident in that so far only developed countries have specific, quantified obligations to reduce greenhouse gas emissions. Moreover, different reporting requirements apply to the respective country groups. 44 Different roles are ascribed to different States based on the abovementioned criteria. In this regard the principle applies differentiation as a requirement of fairness and justice to the otherwise substantial equality of States. 45 The sovereign equality of States has in this respect been modified in order to take account of other factors than statehood. Nowhere is the application of common but differentiated responsibilities – implying preferential or non-reciprocal treatment of developing States – more pronounced than within the climate regime. In fact the climate regime is probably a landmark of differentiation in a sustainable development context, integrating economic and social requirements within the ecological limit set by ‘safe atmospheric greenhouse gas concentrations’. The Convention and the Protocol recognize differentiation based on historic and current emission trends of developed countries and vulnerability of developing countries. The Convention allows for special circumstances of developing countries and their right to development in the Preamble and Article 3(2), even after considering the potential of development to increase the share of emissions from those countries. In this context, the concept of sustainable development is of importance. 41

Preamble and Art. 3.1 UNFCCC. See also: Rajamani (2000) 120-131.

42 43

Sands (2003) 286.

See Melkas (2002) 125.

44 45

See UNFCCC Arts. 4 and 12.

See Melkas (2002) 123.

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The Convention does not state whether increased emissions from developing countries are generally compatible with the ultimate objective. What it says is that the share of emissions coming from developing countries might increase – but to the disadvantage of the shares of developed States. The third paragraph of the Preamble makes it clear: if the share of global emissions originating in developing countries is to rise, it implies that the share of emissions from developed countries is supposed to decline. Both shares have to be seen in relation to the overall aim of keeping atmospheric concentrations on a level below 450 ppm CO2 eqv. Thus, if the differentiation of emission amounts is to be equitable and in accordance with the common but differentiated responsibilities and respective capabilities of Parties, drastic reductions of emissions in developed countries and decoupling economic growth and GHG emissions in particular in developing countries need to be the main goals of climate change mitigation. 46 The references to sustainable development support this view. As we explored above, sustainable development implies developing within global ecological limitations. If equity concerns allow for increased emissions in some less developed parts of the world, these increases have to be ameliorated by significant decreases in developed countries. The global nature of climate change calls for the widest possible cooperation. Despite differentiation, there is a fundamental common responsibility to find a solution. In this sense, differentiation between developed and developing countries in the Protocol has to be seen as a ‘first step toward comprehensive climate strategies’. 47 Of course, developing countries are not a homogeneous group; some are not entirely distinguishable from developed States. The traditional North–South divide is no longer taken as the only line of differentiation. Some countries find themselves in similar circumstances with regard to the climate challenge. They include low-lying small island States for example, like Tuvalu and Fiji; least developed countries and countries with particularly fragile ecosystems, in particular a number of Central-African countries and parts of Asia; large industrial developing countries, like India and China, and countries whose economies are based on oil, generally the members of the Organization of Petroleum Exporting Countries (OPEC). Their economies are not so much threatened by the effects of climate change as by the international responses to them. This gives an indication of the variety of ‘developing countries’. The climate regime attempts to give due regard to the particular interests of the several groups. This attempt, however, requires us to ask how far these diverse concerns should stand in the way of establishing a ‘comprehensive’ and effective climate strategy. If sustainable development means taking account of all and every interest in the name of equality or political and economic justice, then it might indeed obstruct progress in meeting the climate challenge. As 46 47

Claussen and McNeilly (2000).

Preamble, UNFCCC.

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argued above, this is not what sustainable development requires. The concept clearly prioritizes a stable climatic system over developmental interests. Or, in other words, developmental interests have to be defined in terms of the threat they represent to the stability of the global climate system. Differentiation in obligations according to contribution, exposure to damage, capacities and vulnerability is a means to establish an equitable system within the limitations set by a safe global climate. It gives evidence of the understanding that social and economic considerations need to play a significant role in determining appropriate responses to the climate threat – without endangering the climate regime as such. However, the urgency of the task coupled with the complexity of the matter may not allow for a stronger differentiation where some States do not have reduction obligations. Rather all States will eventually be required to actively contributing to solving this challenge.



3.3.3 North–South Partnership

Closely related to the differentiation in mitigation efforts is the responsibility of developed countries not only to commit to sustainable development themselves but also to assist developing countries to develop sustainably. 48 Based on equity concerns, financial resources and other forms of assistance, such as capacity building and technical cooperation, shall be made available to developing countries to address climate change. These contributions range from adaptation measures that deal with the harmful impact of climate change, to measures that aim at increasing energy sufficiency or which have a positive impact on the global climate and guide national policies and measures toward sustainable development. The Convention seeks to break the deadlock between the ‘affluent’ and the ‘aspiring’ by formulating a development strategy which enables developed countries to develop sustainably while funding the sustainable development of the South. Article 4.5 UNFCCC states, for example, that developed country Parties and other developed Parties included in Annex II shall take all practical steps to promote, facilitate and finance, as appropriate, the transfer of, or access to, environmentally sound technologies and know-how to other Parties, particularly developing country Parties, to enable them to implement the provisions of the Convention. In this process, the developed country Parties shall support the development and enhancement of endogenous capacities and technologies of developing country Parties.

The commitments of developed countries to financial, technological and other forms of cooperation with less developed or developing countries are part of a

48

See Matsui in Schrijver and Weiss (eds) (2004) 85.

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nexus of rights and responsibilities negotiated by the Parties to the UNFCCC. 49 This is made clear by Article 4.7 of the UNFCCC: The extent to which developing country Parties will effectively implement their commitments under the Convention will depend on the effective implementation by developed country Parties of their commitments under the Convention related to financial resources and transfer of technology and will take fully into account that economic and social development and poverty eradication are the first and overriding priorities of the developing country Parties.

These commitments, which can be described as ‘partnership obligations’50 or obligations of cooperation,51 are another aspect of the intragenerational dimension of sustainable development included in the climate regime in that they reflect the necessity of ensuring an equitable distribution of burdens between different members of the international community. The legal status of such a solidarity provision is contentious. For some it is merely descriptive of the economic and political reality of the situation. Others see it as a means of persuasion.52 But persuasion also works from the opposite direction. The point of making obligations conditional is to give developing States an opportunity to put pressure on developed States. If developed countries wish developing countries to adopt and implement certain commitments, the developed world will have to contribute to the additional expenditure such measures involve. Or as Birnie and Boyle put it, ‘it becomes irrelevant whether developed States have a legal duty to provide assistance: if they want developing countries to participate actively in securing the goals of each agreement they must honour the expectation that the necessary resources will be provided.’53 At the same time, global problems like climate change can’t be solved without cooperation of the widest possible scope. A cooperation clause should therefore be considered as a kind of precautionary measure that ensures effective implementation by and compliance of developed countries. Developed States increasingly recognize how much they stand to lose in political, legal and moral 49 50 51

See French (2005) 93.

Ibid.

This kind of cooperation has been called for by the 1992 Rio Declaration. In its Preamble the Declaration notes: “With the goal of establishing a new and equitable global partnership through the creation of new levels of cooperation among states.”

52

Boyle notes, for example, “the arguments for linking [financial and technology transfer] provisions to environmental protection measures are different from the focus on economic self-determination that prevailed in the resource conflicts of the 1970s. Now the problem is to persuade developing states to participate in treaty regimes that may be perceived as offering little benefit or as hindering their freedom to develop.” Boyle, A. ‘Comment on the Paper by Diana Ponce-Nava’ in W. Lang (ed.) Sustainable Development and International Law (London: Graham & Trotman, 1995) 138.

53

Birnie and Boyle (2002) 94.

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authority if they fail to respect the terms of the original compromise. Article 4.7 encapsulates within a single provision the very nature of the climate regime. It is ‘a carefully negotiated, evenly balanced and, most importantly of all, a mutually interdependent compromise’.54 This compromise reflects to some extent current thinking on and commitment to sustainable development.



3.3.4 Funding and Financial Obligations

Financial contributions from developed countries are meant to meet the additional costs incurred by the implementation of the commitments under the climate regime. According to Article 3 UNFCCC, these costs are divided into two main categories. First, there are the ‘agreed full costs’ of a developing country’s communication to the COP as required under Article 12.1 UNFCCC, and second the ‘agreed full incremental costs’ of activities undertaken by developing countries under Article 4.1 UNFCCC, which sets out the general obligations of all Parties. Into the first category fall costs such as national inventories of anthropogenic greenhouse gas emissions under Article 12.1(a). The second category is, however, more difficult to define. The notion of ‘incremental costs’ remains debated, in particular its relation to ‘global benefits’ and the promotion of sustainable development (Article 4.1(d)). The extent of this funding is still to be ‘agreed’ by the developing States that undertake to implement their commitments under Article 4.1 UNFCCC and the ‘international entity or entities’ entrusted to operate such funding. To make the concept of agreed incremental costs and global benefits more understandable, the process of determining incremental costs should be transparent, flexible and pragmatic.55 The reference to ‘new and additional financial resources’ in Article 4.3 clearly means additional financial support for developing countries. Here, traditional channels – mostly foreign aid, direct foreign investment or development assistance (ODA) – need to be extended and supplemented by more innovative means and sources of financial assistance for reasons of global environmental protection.56 In particular, the Clean Development Mechanism as an investment mechanism is supposed to contribute also financially to the host country. However, these contributions need to be evaluated separately from and in addition to Article 4 UNFCCC.57 Financial contributions for climate reasons are additional if they do not lead to diminished financial flows for poverty eradication and development needs otherwise. Other provisions indicate further, broader financial commitments. Article 4.5, for example, requires developed countries to take all possible steps to 54 55

French (2005) 94.

Decision 5/CP. 8 para 4c.

56 57

Jordan and Werksman, in Cameron, Werksman and Roderick (eds.) (1996) 248.

Meijer and Werksman, in Freestone and Streck (eds) ( 2005) 191-211; Huq and Reid (2005).

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promote, facilitate and finance the transfer of, or access to, environmentally sound technologies and know-how to other Parties, particularly developing countries. Article 4.4 requires developed country Parties to assist developing countries that are particularly vulnerable in meeting adaptation costs, while Article 4.8 calls for funding, insurance and transfer of technologies to meet specific needs of developing country Parties from the effects of climate change or from the effects of response measures. Articles 10 and 11 of the Kyoto Protocol extend the financial commitments of developed countries. As mentioned above, also Article 12 opens for additional financial contributions. Article 11 of the UNFCCC defines a financial mechanism. There is debate around this particular mechanism and it remains a contentious issue. While developed States have expressed a strong desire to avoid the creation of a new institution, developing countries are calling for a new multilateral fund or funding institution under the auspices of the Parties themselves.58 However, despite the establishment of two funds under UNFCCC and one under the Kyoto Protocol,59 most climate projects in developing countries are funded by the World Bank-based Global Environment Facility (GEF). The funds are located, managed and operated by the GEF with the distinction that they do not belong to the core funding under the GEF and that funding remains optional.60 The GEF was made permanent in 1998 and has since effectively acted as the climate regime’s financial mechanism61 because due to resistance from some countries, neither the Special Climate Change Fund nor the Adaptation Fund is yet fully operationalized.62 58

See Werksman (1995) 49.

59

The two funds under UNFCCC are a Special Climate Change Fund (SCCF) to provide financial means for adaptation, technology transfer, energy, transport, agricultures, forestry and waste management in developing countries and a Least Developed Countries Fund (LDCF). Under the Kyoto Protocol there is the Kyoto Adaptation Fund (AF), which shall finance specific adaptation projects in developing country Parties and receives a share of proceeds of 2% of the CERs generated under the CDM. These three funds are to be financed on a voluntary basis by Annex I parties. The EU, Canada, Iceland, Norway and New Zealand issued a joint political declaration on their preparedness to collectively contribute US$450 million annually by 2005 to these new funds.

60

French (2005) 99 et seq. He notes “the distinction between core and additional funding represents the continued unwillingness of developed States to adopt a ‘blank cheque’ approach to global environmental problems, particularly in the area of adaptation.” Ibid.

61

Remark made by COP8, Decision 5/CP. 8 (2002).

62

Some developing countries feel that GEF requirements for financing under the SCCF favour countries that already receive major foreign direct investment flows. A joint communication document from the COP and GEF requests clarification of fund allocation and economic diversification activities. In Montreal, 2005, Parties did not come to an agreement on the functioning of the SCCF. Even more complicated is the situation of the AF. A number of developing country Parties oppose the substantial power of the US in the decision-making processes of the GEF while not being a Party to the Kyoto Protocol. The EU, on the other hand, supports locating the AF in the GEF to ensure that project activities are

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Despite this consolidation of the GEF, uncertainties remain with regard to the possibility to support adaptation measures.63 It appears that the GEF’s own mandate, which focuses on the achievement of ‘global environmental benefits’ seems to exclude adaptation measures, which are largely marked by a national context and absence of ‘environmental benefits’. The operational strategy of the GEF, which rests on three programmes to a) remove barriers to energy efficiency and energy conservation, b) reduce the long-term costs of low greenhouse gas emitting technologies, and c) promote environmentally sustainable transport, seems incompatible with larger funding for adaptation. Support for adaptation, however, has become a clear matter of principle for developing States. Much of the lack of progress in international climate negotiations is related to problems finding the relative balance of adaptation and mitigation. The 2002 Delhi Ministerial Declaration states that ‘mitigation ... continues to have high priority under the provisions of the Convention and that, at the same time, urgent action is required to advance adaptation measures.’64 French notes that arguments concerned with the rhetoric of equity and justice in the balancing of adaptation and mitigation go to the very core as to the purpose of the climate regime.65 The new funds are a sign of progress and of developing countries’ strengthened negotiation position. Still, the extent of all these financial commitments and their relation to each other are contentious. In particular, the distinction between core and additional funding reflects a careful balance between developing countries’ demand for greater financial assistance to participate in the global fight against climate change and developed States’ continuous refusal to accept legal responsibility for the damages caused by climate change. However, the inclusion of funding mechanisms and means in the climate regime is an indication of the consensus of the international community as to their necessity and appropriateness. All these measures concern the relation of developed to developing countries with regard to the delicate balance of responsibility, distribution of costs and allocation of commitments, evidence of the general understanding of intragenerational justice as a part of sustainable development.66

coordinated with the activities under the SCCF and the LDCF. Accordingly, the AF is still under heated debate and only very limited developments were achieved in Montreal. (See text on initial guidance, FCCC/SBI/2005/L.23). 63

Verheyen (2002 129-143; Werksman (1993) 5.

64 65

Preamble, 2002 Delhi Ministerial Declaration.

French (2005) 99.

66

See Loibl in Schrijver and Weiss (eds) (2004) 113-114.

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3.3.5 Economic Flexibility

Economic flexibility promoted by the flexibility mechanisms constitutes a practical application of the recognition that global environmental problems of the scope and complexity of climate change have to be solved through partnerships involving all countries and all sectors. As regards the flexibility mechanisms of the Kyoto Protocol, however, it is primarily the differences between compliance costs in developed countries that are addressed. Rather than imposing stronger limitation obligations on countries that are most capable, the re-allocation of assigned amounts and the purchase or sale of emission allowances based on Joint Implementation and the Clean Development Mechanism are left to economic considerations. The question of whether it is cheaper to buy additional emission allowances or to implement climate friendly technology that reduces greenhouse gas emissions is mainly based on the price and availability of emission units. The relationship of the flexibility mechanisms to considerations of justice and equity and, thus, to sustainable development is still an intricate issue. Costeffectiveness and equity might not always be mutually supportive.67 Even if the rationale for flexibility mechanisms is cost-effectiveness, their implementation has to accord to the general principles of the Convention as much as general principles of international law in general.68 The flexibility mechanisms of the Kyoto Protocol address equity concerns among developed countries. In order to comply, however, with wider requirements, such as intergenerational equity and the insurance of overall environmental integrity, these objectives need to be particularly safeguarded.69 The use of economic measures, such as emissions trading or project based mechanisms, is subordinated to compliance with the ultimate objective of the Convention and the more specific quantitative reduction commitments. All policies and measures adopted by developed countries must be consistent with sustainable development.70 And by including sustainable development in Article 10 UNFCCC, all measures to implement existing obligations under the Convention are likewise subject to the obligation to be consistent with sustainable development. In other words, certain safeguards have been established and others still need to be set up to ensure that cost-effectiveness does not come at the expense of sustainable development. Within the requirement of sustainable development, cost-effective, flexible means can be elaborated. The Kyoto Protocol clearly puts sustainable development above economic development and cost-effectiveness.71 Both promote sustainable development and safe climatic conditions, and are not as ends in themselves. 67

See Baumert, Perkaus and Kete (2003) 137-148.

68

Cullet (1999) 173.

69 70 71

See Meijer and Werksman (2005).

Art. 2 KP.

See Arts and Gupta (2004) 550.

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In particular the flexibility mechanisms belie to the often proclaimed indeterminacy of the concept of sustainable development and the feared ‘trend’ that the ecological component of sustainable development is reduced to insignificance.



4 Concluding Remarks

In conclusion, it can be stated that sustainable development and climate change mitigation are inseparable. Any sustainable development path has to be attuned to the need of establishing safe atmospheric greenhouse gas concentrations. If the climatic balance is affected by human activity, such activity – albeit contributing to economic growth, better living conditions, and poverty alleviation in the shorter term – cannot be deemed sustainable. Sustainable development is a multifaceted concept covering integration of economic and social and environmental concerns, equity and justice between generations and within the present generation. Yet, it has a core meaning: the protection of essential ecological functions. With regard to climate change, these issues have been taken out of the rhetorical debate and put into practical action. They are rightly accorded prominence in the climate regime. The international community, in striving to find a consensus on how to mitigate dangerous climate change, is simultaneously setting the scope for sustainable development. The development of the climate change regime can be seen as the international community coming together in its conception of the principle of sustainable development. Sustainable development certainly demands more than what has been achieved so far and remains a guide to the future development of the regime. Still, the design of the climate regime consolidates the general acceptance of sustainable development. This linkage will become even more apparent in the design of future commitment schemes. There, the acceptance of stronger and longer-term emission limitation and reduction commitments by developed States and quantified commitments by at least major developing countries will be crucial. The importance of developing country committing to decoupling their economic development from upward GHG emissions trends was made clear by the IPCC as early as in its second report. ‘[I]t is not possible for the rich countries to control climate change through the next century by their own actions alone, however drastic. It is this fact that necessitates global participation in controlling climate change, and hence, the question of how equitable to distribute efforts to address climate change on a global basis.’72 The approach adopted by the Kyoto Parties is an affirmation of the international community’s attempt to conceptualize sustainable development in the 72

IPCC (1995) 97.

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context of climate change.73 Still, whatever the outcome of future negotiations, a successor agreement to the Kyoto Protocol will need to deliver significantly stronger commitments by the global community of States in its entirety, much further into the future. This requires a deeper and more universal understanding of the considerations of justice inherent to the concept of sustainable development and the problem of climate change.

73

Sands (1994) 304; French (2005a) 274.

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climate change and the mandate of sustainable development:

Biliography Arts and Gupta (2004) K. Arts and J. Gupta, ‘Climate Change and Hazardous Waste Law: Developing International Law of Sustainable Development’ in N. Schrijver and F. Weiss (eds.) International Law and Sustainable Development (Leiden: Martinus Nijhoff, 2004) 519.

Baumert, Perkhaus and Kete K. A. Baumert, J. F. Perkaus and N. Kete., Great Expectations: Can International Emissions Trading Deliver an Equitable Climate Regime? (2003) 3:2 Climate Policy 137-148.

Boyle (1995) A. Boyle, ‘Comment on the Paper by Diana Ponce-Nava’ in W. Lang (ed.) Sustainable Development and International Law (London: Graham & Trotman, 1995) 137.

Birnie and Boyle (2002) P. Birnie, and A. Boyle, International Law and the Environment, 2nd ed (Oxford: Oxford University Press, 2002.)

Claussen and McNeilly (2000) E. Claussen and L. McNeilly, Equity and Global Climate Change: The Complex Elements of Global Fairness, reprinted edition (Arlington, VA.: Pew Center on Climate Change, 2000).

Commission of the European Union (2005) Commission of the European Union, COM (2005) 35 final, 9.2. 2005, Winning the Battle Against Climate Change.

Cullet (1999) P. Cullet, Equity and Flexibility Mechanisms in the Climate Change Regime: Conceptual and Practical Issues (1999) 8:2 Review of European Community & International Environmental Law, 168-179.

De Sadeleer (2002) N. de Sadeleer, Environmental Principles. From Political Slogans to Legal Rules (Oxford: Oxford University Press, 2002).

French (2005) D. French, International Law and Policy of Sustainable Development (Manchester: Manchester University Press, 2005).

Gillespie (2006) A. Gillespie, Climate Change, Ozone Depletion and Air Pollution (Leiden/Boston: Martinus Nijhoff Publishers, 2006).

Huq and Reid (2005) S. Huq and H. Reid, ‘Benefit Sharing under the Clean Development Mechanism’ in D. Freestone and C. Streck (eds.) Legal Aspects of Implementing the Kyoto Protocol Mechanisms: Making Kyoto Work (Oxford: Oxford University Press, 2005) 229-247.

IPCC (2007a) IPCC, Fourth Assessment Report, Climate Change 2007: Synthesis Report, Summary for Policymakers, December 2007. 569

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IPCC (2007) IPCC Climate Change 2007: Impacts, Adaptation and Vulnerability. Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (http://www.ipcc-wg2.org/).

IPCC (2001)/Working group I IPCC, Climate Change 2001: The Scientific Basis. Contribution of Working Group I to the Third Assessment Report of the Intergovernmental Panel on Climate Change (J.T. Houghton et al., eds.; Cambridge University Press, 2001).

IPCC (2001)/Working group II IPCC, Climate Change 2001: Impacts, Adaptation and Vulnerability. Contribution of Working Group II to the Third Assessment Report of the Intergovernmental Panel on Climate Change (J. McCarthy et al., eds., Cambridge University Press, 2001).

IPCC (2001)/Synhesis report IPCC, Climate Change 2001: Synhesis report (R. T. Watson, and the Core Writing Team. eds. Cambridge University Press 2001).

IPCC (1995) IPCC, Climate Change 1995: Economic and Social Dimension of Climate Change. Contribution of Working Group III to the Second Assessment of the Intergovernmental Panel on Climate Change (J.P. Bruce et al.) (eds.) (Cambridge University Press, 1995).

Jordan and Werksmann (1996) A. Jordan and J. Werksman, ’Financing Global Environmental Protection’ in J. Cameron, J. Werksman and P. Roderick (eds.) Improving Compliance with International Environmental Law (London: Earthscan, 1996) 247-256.

Kiss and Shelton (2004) A Kiss and D. Shelton, International Environmental Law, 3rd ed. (Ardsley, New York: Transnational Publishers, 2004).

Lebret (1967) L.J. Lebret, Dynamique concrète du développement, Économie et Humanisme, Les éditions ouvrières, Paris, 1967.

Loibl (2004) G. Loibl, ‘The Envolving Regime on Climate Change and Sustainable Development’, in N. Schrijver and F. Weiss (eds.) International Law and Sustainable Development (Leiden: Martinus Nijhoff, 2004) 97-119.

Matsui (2004) Y. Matsui, ‘The Principle of “Common but Differentiated Responsibilities”‘ in Schrijver N., and Weiss F. (eds.) International Law and Sustainable Development (Leiden: Martinus Nijhoff, 2004) 73-96.

Meijer and Werksmann (2005) Meijer, E. and Werksman, J., ‘Keeping it Clean – Safeguarding the Environmental Integrity of the Clean Development Mechanism’ in D. Freestone and C. Streck (eds.) Legal Aspects of Implementing the Kyoto 570

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Protocol Mechanisms: Making Kyoto Work (Oxford: Oxford University Press, 2005) 191-211.

Melkas (2002) E. Melkas, Sovereignty and Equity within the Framework of the Climate Regime (2002) 11:2 Review of European Community & International Environmental Law, 115-128.

Metz et al. (2002) B. Metz et al., Towards an Equitable Global Climate Change Regime: Compatibility with Article 2 of the Climate Change Convention and the Link with Sustainable Development (2002) 2:2-3 Climate Policy, 211-230.

Millenium Ecosystem Assessment (2005) Millennium Ecosystem Assessment: Living Beyond Our Means, 2005.

O’Neill and Oppenheimer (2002) B.C. O’Neill and M. Oppenheimer, Dangerous Climate Impacts and the Kyoto Protocol (2002) 296:5575 Science 1971-72.

Rajamani (2000) L. Rajamani, The Principle of Common but differentiated Responsibility and the Balance of Commitments under the Climate Regime (2000) 9:2 RECIEL 120-131.

Redgwell (1991) C. Redgwell, ‘Intergenerational Equity and Global Warming’ in R. Churchill, and D. Freestone (eds.) International Law and Global Climate Change (London: Graham and Trotman/Martin Nijhoff, 1991).

Sands (2003) P. Sands, Principles of International Environmental Law, 2nd ed. (Cambridge: Cambridge University Press, 2003).

Sands (1994) P. Sands, International Law in the Field of Sustainable Development (1994) 65:5 BYBIL, 303-381.

Sands (1992) P. Sands, International Law in the Field of Sustainable Development (1992) 1:3 Review of European Community & International Environmental Law, 304.

Schwartz and Randall (2003) P. Schwartz and D. Randall, An Abrupt Climate Change Scenario and Its Implications for United States National Security, October 2003, Public Report, prepared by Global Business Network (GBN) for the US Department of Defence.

The International Climate Taskforce (2005) The International Climate Taskforce, Meeting the Climate Challenge – Recommendations of the International Climate Change Taskforce (London, Washington, D.C., Canberra: International Climate Taskforce, 2005).

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Trouwborst (2002) A. Trouwborst, Evolution and Status of the Precautionary Principle in International Law (The Hague: Kluwer, 2002).

Verheyen (2002) R. Verheyen, Adaptation to the Impacts of Anthropogenic Climate Change – The International Legal Framework (2002) 11:2 RECIEL, 129-143.

Voigt (2005) C. Voigt, From Climate Change to Sustainability – An Essay on Sustainable Development, Legal and Ethical Choices (2005) 9:1 Worldviews, 112-37.

Voigt (2006) C. Voigt, The Precautionary Principle and Genetic Engineering in New Zealand (2002) 6 New Zealand Journal of Environmental Law, 43-96.

Wang (2004) X. Wang, ‘Sustainable International Climate Change Law: A Future Legal Research Agenda’ in M.C Cordonier Segger and A. Khalfan (eds.) Sustainable Development Law: Principles, Practices and Prospects (Oxford: Oxford University Press, 2004) 351-361.

Werksmann (1995) J. Werksman, Consolidation Governance of the Global Commons: Insights from The Global Environmental Facility (1995) 6 YbIEL 2765.

Werksmann (1993) J. Werksman, The Convention and the GEF: Meeting the Costs of Adaptation (London: FIELD, 1993).

WCED (1987) WCED, Our Common Future, Oxford, OUP, 1987.

Yamin (1999) F. Yamin, Equity, Entitlements and Property Rights Under the Kyoto Protocol: The Shape of ‘Things’ to come (1999) 8:3 RECIEL 265-274.

Table of Cases • Dissenting Opinion of Judge Weeramantry to the Order of the Court regarding the Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s of December 20 1974 in the Nuclear Tests (New Zealand v. France) Case, 22 September 1995.

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Balancing Exploitation and Protection of the Dutch North Sea The Dutch Struggle with the Need For Wind Energy at Sea and a Legal Framework for the Protection of the Marine Environment Kars de Graaf

chapter 6.3



balancing exploitation and protection of the dutch north sea

1 Introduction to the Dilemma

Twenty years and a day after the Brundtland Report, ‘Our Common Future’, was presented on 17 April 1987, the Dutch government celebrated the opening of the first offshore wind farm in the Dutch territorial waters of the North Sea. The Brundtland Report recognized the high untapped potential of wind energy and acknowledged that production of renewable energy is crucial to the concept of sustainable development, but it also considered the protection of the oceans to be crucial for future generations. Creating renewable energy using wind farms at sea is concerned with both aspects. In this paper I would like to introduce you to the Dutch struggle to create an adequate and appropriate legal framework to balance the need for economic exploitation of the North Sea against the obligation to protect the marine environment for future generations. Of course, the production of renewable energy will help protect the environment for future generations and therefore helps the project of sustainable development. However, the dilemma is quite clear. The economic exploitation of wind farms at sea can have serious adverse consequences for the marine environment. Although more research is necessary, the erection of offshore wind farms is very likely to affect birds: there is a risk of collision and long-term habitat loss due to disturbance by turbines and maintenance. Next to that, noise and vibrations by wind turbines may have serious biological impact for birds, sea mammals and fish. The Dutch government has been struggling to implement an appropriate legal framework which will permit the safe production of renewable energy at sea, while protecting the marine environment and biodiversity in accordance with international and European law. This paper thus concentrates on this Dutch struggle for a sustainable use of the North Sea. The use of any renewable energy source makes a significant contribution towards climate protection, it places our energy supply on a sustainable ecological footing and consequently helps to conserve the natural balance. The Dutch policy on offshore wind energy production was triggered by the international demands of both the Kyoto protocol and the European Union Directive on electricity production from renewable energy sources (2001/77/EC). The production of renewable clean energy will avoid CO2 emissions and make the Dutch energy market less dependent on other, non-renewable resources.  In light of *

Kars de Graaf is associate professor in the Department of Administrative Law and Public Administration in the law faculty of the University of Groningen, the Netherlands.



WCED (1987) chapter 7, no. 78, and chapter 10. The concept of sustainable development and its development is explained rather well by Lee (2005), pp. 25-48.

 

For research on eiders, see Larsen and Guillemette (2007), p. 516 ff.

See Wahlberg and Westerberg (2005), p. 295 ff. For further information, see .



The main focus of the Netherlands is, according to the new administration in 2007, the reduction of CO2 emissions by whatever means possible. It stresses the need to reduce energy consumption.

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these goals, all closely related to the project of sustainable development, the Dutch government has set itself the target of having 20% of energy consumption supplied by renewable energy production in 2020. Wind energy can and will be of great assistance in achieving this goal in the Netherlands. Due to the limited amount of space available on land, the Netherlands has stressed the need to reach 6,000 MW of wind energy generating capacity at sea by 2020. If achieved, the electricity supplied by these wind farms will probably account for 10% of energy consumption. Nevertheless, the utilization of renewable sources of energy such as wind energy at sea can have an adverse impact on the marine environment. The North Sea is of particular ecological interest. The subject of this paper is closely related to the legal status of the North Sea, in particular the Dutch Exclusive Economic Zone (EEZ), and international law protecting biodiversity and the marine environment, especially in relation to the designation of protected areas and the need for environmental impact assessment. The first question is therefore concerned with the legal status of the EEZ and the international and European law that governs this part of the Dutch North Sea (Section 2). I will focus on the applicability of Dutch national law in that zone. Much more interesting than the exact legal framework is the Dutch policy on both wind farms at sea and the protection of the marine environment (Section 3). In my conclusion I will highlight some remaining questions and allude to an end to the Dutch struggle (Section 4).



2 Legal Aspects of Wind Energy in the North Sea



2.1 The North Sea and International Marine Protection

It is impossible to discuss all international law pertaining to the Dutch area of the North Sea. Considering the focus of this paper, I will concentrate on international law protecting the marine environment and will refrain from referring to international law on the protection of the marine environment against pollution (from vessels). The main question is to what extent the Dutch government has the right or legal duty to protect the marine environment against the exploitation of the North Sea. The legal status of the North Sea is, of course, regulated by international law. Most relevant to the legal status of the North Sea are the maritime areas known as the ‘territorial waters’ and the Exclusive Economic Zone (EEZ). International law recognizes the sovereignty of a coastal state in Article 2 of the United Nations Convention on the Law of the Sea (part II of UNCLOS) up to 12 nautical miles from the shore baseline. In these territorial waters any law or act of the coastal state applies simply because these waters belong to the territory of the 

The treaty was ratified by the Netherlands on 28 June 1996; the EC formally confirmed the treaty on 1 April 1998.

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coastal state. Thus, the Exclusive Economic Zone is a creation of international law. On the basis of Article 55 of UNCLOS (part V), the Netherlands might claim an area beyond and adjacent to the territorial waters up to 200 nautical miles from the shore baseline. The Dutch EEZ was claimed by the Dutch legislator on 28 April 2000 in accordance with UNCLOS. This means that the Dutch government has sovereign rights (see Article 56 (1) (a) of UNCLOS) for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and wind. As wind farms at sea seek to produce energy using wind, the exploitation of the EEZ in this manner seems to be in accordance with UNCLOS. Furthermore, the coastal state has, according to Article 56 (1) (b) of UNCLOS, functional jurisdiction over the EEZ with regard to the establishment and use of artificial islands, installations and structures, and the protection and preservation of the marine environment. The exploitation of wind farms and the protection of the marine environment in the Dutch EEZ are therefore governed by Dutch law, which must be in accordance with international and European law. From part XII of UNCLOS on the protection and preservation of the marine environment it becomes clear that claiming the EEZ allows the state to exploit the natural resources in it. There are, however, important restrictions, as Article 192 of UNCLOS invokes the general obligation to protect and preserve the marine environment. The state has an exclusive right to exploit the zone but is not awarded this right to use it exclusively for economic development. In other words, the exploitation of the EEZ must take into account the fragile marine environment. Article 194 of UNCLOS states that there is an obligation on the Dutch government to take all measures necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at its disposal and in accordance with its capabilities, and that it shall endeavour to harmonize its policies in this regard. As did most countries, the Dutch government reached the conclusion that it is within its powers to establish a nature protection reserve in the North Sea. In addition to the obligation to protect the environment, Articles 196 (on the introduction  

For a map of the area, see .

Some restrictions are concerned with the needs of future generations. For example, Article 61 of UNCLOS determines that the coastal state shall ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not endangered by overexploitation. Other restrictions are concerned with the right of (innocent or transit) passage as laid down in UNCLOS and which can interfere with attempts to protect the marine environment.



The Dutch act that claims the Dutch EEZ actually stipulates that the protection of the marine environment is one of the reasons for the claim.



Parliamentary Documents of the Dutch Lower House 1995-1996, 24 433 (R 1549), no. 5, p. 14.

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of alien or new species), 206 (on the obligation to perform an environmental impact assessment) and 208 of UNCLOS (on pollution due to seabed activities subject to the coastal states’ jurisdiction) are relevant to Dutch authorities with regard to the exploitation of wind farms in the EEZ. The legal framework that UNCLOS provides for finding a balance between economic exploitation and environmental protection could be considered a starting point for sustainable use of the natural resources at sea, such as wind energy. However, from a sustainable development point of view it is not surprising that this framework is incomplete.10 The phrase ‘sustainable development’ is of course not mentioned in the treaty, as it was signed in 1982, before ‘Our Common Future’ was released and before sustainable development became an important paradigm in international (legal) discourse and policymaking.11 Other treaties concerned with the protection of the Dutch EEZ and the North Sea do refer to the idea of sustainable development or sustainable use. Let us briefly take a look at some applicable treaties that are concerned with the marine environment and biodiversity, especially in the EEZ. Erecting wind turbines in an ecological sensitive area like the Dutch North Sea, will quit possibly affect (migratory) birds and fish.12 First of all, the Convention on Biological Diversity (CBD) of 1992 seems of special importance.13 This treaty was a result of the United Nations Convention on Environment and Development and is applicable in the EEZ according to Article 4. Among the objectives of the CBD are the conservation of biodiversity and the sustainable use of its components. The convention is concerned with the protection of the marine environment according to the definition of biodiversity given in Article 2. A specific programme of action for implementing the convention – the Jakarta Mandate on Marine and Coastal Diversity – stipulates the importance of biodiversity in the marine and coastal environment.14 Of special interest is Article 8 of the CBD concerning the ‘in situ’ conservation of biodiversity. It states among other things that a contracting party shall, as far as possible and as appropriate,15 establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity. Alongside 10

One of the three pillars of sustainable development is absent − social development. On the three pillars see no. 5 of the Johannesburg Declaration on Sustainable Development (which was adopted during the 2002 World Summit on Sustainable Development and can be found at ).

11

See on the origin and meaning of sustainable development, Barstow Magraw and Hawke in Bodansky, Brunnée and Hey (eds) (2007) p. 613 ff.

12 13

See paragraph 1.

The Netherlands ratified the treaty on 12 July 1994 and the EC on 21 December 1993.

14 15

See .

The restriction ‘as far as possible’ most likely refers to the available means in (for instance) developing countries, while the restriction ‘as far as appropriate’ most likely forces the parties to undertake the best measures to meet the obligation to sustain biodiversity.

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these protective measures, Article 14 of the CBD stresses the need for precaution by referring to the need for environmental impact assessments. Of course, Article 22 (2) of the CBD stresses that the contracting parties shall implement the convention with respect to the marine environment so as to be consistent with the rights and obligations of states under the law of the sea, including UNCLOS.16 Both the Netherlands and the European Community are party to the Bonn Convention on the Conservation of Migratory Species of Wild Animals of 1979.17 Even in the preamble to this treaty of 1979, several years before The Brundtland Report was presented, parties acknowledged that each generation holds the resources of the earth in trust for future generations and has an obligation to ensure that this legacy is conserved and, where utilized, done wisely. From this treaty came two agreements that are relevant to the Dutch North Sea, including the Dutch EEZ. There is the Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas (ASCOBANS) of 1992 which is concerned with a favourable conservation status for so-called small cetaceans. The second is the Agreement on the Conservation of African-Eurasian Migratory Waterbirds (AEWA). Parties to this agreement shall take measures to conserve migratory water birds, giving special attention to endangered species as well as to those with an unfavourable conservation status. The extent to which these water birds can be found in the Dutch EEZ remains unclear, however. As with the Bonn Convention, the Netherlands and the European Community are party to the Bern Convention on the Conservation of European Wildlife and Natural Habitats of 1979.18 Although it does not explicitly stipulate that it applies in the Dutch EEZ, the goals and obligations make it quite clear that the Bern Convention is also meant to apply to this maritime zone. As both the Bonn and the Bern Convention are concerned with the protection of the marine environment and are implemented in European law by the Birds Directive and the Habitats Directive, they are of great importance to the subject of this paper.19 The OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic of 1992 is also applicable in the Dutch EEZ.20 One of the main objectives of this treaty reflects the concept of sustainable development: 16

See, however, Article 237 of UNCLOS. For the interaction between UNCLOS and the CBD, see Boyle in.Bodansky, Brunnée and Hey (eds) (2007) p. 138 ff.

17

For the EC and the Netherlands the treaty came into effect on 1 November 1983. The Birds and Habitats Directives must be seen as the implementation of the Bonn Convention in Europe.

18

For the Netherlands the treaty came into effect on 1 June 1982, for the EC on 1 December 1982. The Birds Directive and the Habitats Directive must be seen as the implementation of the Bern Convention in Europe.

19

Of course one could also think of the Ramsar Convention on Wetlands of 1971, but that Convention is not concerned with the marine environment in the EEZ.

20

The Convention came into effect on 25 March 1998 for the Netherlands and the European Union. See . For the applicability of the treaty in the EEZ, Article 1a is relevant.

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to achieve sustainable management of the maritime area, that is, the management of human activities, in such a manner that the marine ecosystem will be continually sustained through legitimate use of the sea and will continue to meet the needs of present and future generations.21 Just like the CBD, the OSPAR Convention emphasizes the precautionary principle in its preamble and Article 2.22 Relevant to the subject of this paper are Annexes III and V. Annex III states in Article 5 that no disused offshore installation shall be dumped or left wholly or partly in place in the maritime area without a permit that is issued on a case-by-case basis by the competent authority of the relevant contracting party. No such permit shall be issued if the disused offshore installation contains substances which are likely to result in hazards to human health, harm to living resources and marine ecosystems, damage to amenities or interference with other legitimate uses of the sea. Another important aspect of the OSPAR Convention lies in Annex V on the Protection and Conservation of the Ecosystems and Biological Diversity of the Maritime Area. It was adopted in 1998 and accompanied by a strategy for its implementation. Since 2000 it has provided the legal basis for a recommendation adopted in 2003 with the purpose of establishing Marine Protected Areas (MPAs).23 By 2010 there should be an ecologically coherent network of well-managed MPAs, with the envisaged network being consistent with and complementary to the Natura 2000 network.24 The Dutch government has stated that it wants to simultaneously designate areas in the North Sea as MPAs and as Special Protection Areas (SPAs) or Special Areas of Conservation (SACs) on the basis of the European Birds and Habitats Directives.25 European law itself has adopted the concept of sustainable development.26 Articles 2 and 6 of the EC treaty refer to it explicitly. The European Birds and Habitats Directives will have a tremendous impact on the protection of the marine environment in the Netherlands.27 The European concern for the protection of the marine environment is growing and can especially be seen 21

See the preamble to the Convention.

22

This is one of the reasons why there are extensive programmes monitoring the effect of wind farms at sea on the marine environment.

23

OSPAR Recommendation 2003/3 on a Network of Marine Protected Areas.

24 25

Also see .

Council Directive 9/409/EEC on the Conservation of Wild Birds and Council Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora. The Dutch government expressed this in January 2007 (see Parliamentary Documents of the Dutch Lower House 2006-2007, 30 195, no. 17).

26 27

See Lee (2005) pp. 25-48. Also see Krämer in Bodansky, Brunnée and Hey (eds)( 2007) p. 866.

Generally, European law can be applicable to the EEZ when the member states have jurisdiction over the EEZ, see Kapteyn, Verloren van Themaat and Gormley (1998) p. 92. Cf. in general on the question to what extent European environmental law is applicable outside the territory of the member states, Jans and Vedder (2007) Chapter 1, paragraph 3.2 in particular.

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in the proposal for a Marine Strategy Directive, which will probably be adopted in 2008.28 Focusing on protected areas and the use of environmental impact assessments, the two Directives mentioned are relevant,29 as well as the Environmental Impact Assessment Directive.30 The Habitats Directive requires member states to set up a series of sites, the purpose of which is to contribute to the maintenance or restoration of a favourable conservation status for habitats or species listed in Annexes I and II of the Habitats Directive, in so-called SACs, while SPAs arise from the Birds Directive which requires member states to take special measures to conserve habitats for certain rare or vulnerable species (Annex I) and regularly occurring migratory bird species. SACs and SPAs are collectively referred to as Natura 2000 sites. The question of whether these European Directives are applicable in the EEZ according to European law was answered in the affirmative by the High Court of Justice in England on 5 November 1999 and by the European Court of Justice on 20 October 2005.31 Both ruled that the Habitats Directive must be implemented in the EEZ (offshore) using legally binding rules.32 It is generally accepted that the same can be said of the Directives on environmental impact assessment. It can be concluded that international (and European) law provides a basis for the exploitation of wind farms in the EEZ, but that it also invokes an obligation to protect the marine environment in different ways. What legal framework did the Dutch legislator create for the Dutch EEZ and the North Sea?



2.2 The Dutch Legal Framework

Until recent years, and certainly not before the EEZ was claimed, the Dutch government was not concerned with the legal framework for the innovative use of the North Sea. Of course, an adequate legal framework for the existing human use of the Continental Shelf, for example, the mining activities for fossil fuels, was in place, but there was no serious structural thought on the need to extend the legislation intended to guide land use to the EEZ. Therefore, the legislation applicable on shore and in the territorial waters has 28

I will not go into detail on this proposed Marine Strategy Directive. More information can be found at .

29

The European Commission has set a target for designating areas in the marine environment. See .

30

Council Directives 97/11/EC and 85/337/EEC on the assessment of the effects of certain public and private projects on the environment. Also see European Parliament and Council Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment.

31

High Court of Justice 5 November 1999, case CO/1336/1999; ECJ 20 October 2005, case C-6/04 Commission v. UK [2005] ECR I-9017.

32

See inter alia case C-415/01 Commission v. Belgium [2003] ECR I-2081. Also see the ‘Guidelines for the establishment of the Natura 2000 network in the marine environment’ at .

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very little relevance to the EEZ. With the growth of different kinds of human use of the North Sea, such as the desire to establish wind farms, the need for a new, appropriate and adequate legal framework has been growing. Although the need is not very dissimilar to the need for a framework on shore, the Dutch acts intended for land protection, such as the Nature Conservation Act 1998 (Natuurbeschermingswet 1998 of 2005), the Flora and Fauna Act (Flora- en faunawet of 2002) and the Environmental Management Act (Wet milieubeheer), do not apply to the EEZ.33 The measures that have been taken by the Dutch legislator to protect areas of particular ecological interest and to obligate applicants to perform an environmental impact assessment – using legally binding rules – are disappointing and in violation of European law. If we consider the Housing Act (Woningwet) and the Spatial Planning Act (Wet op de Ruimtelijke Ordening), another strange phenomenon exists. The Dutch territory is divided into many municipalities. Municipalities adjacent to the sea have a border that extends up to one kilometre into the territorial waters. It is therefore unknown which administrative body has jurisdiction over the granting of building permits, and no physical plan, for which the board of a municipality is responsible, can be applied to the largest part of the territorial waters (from the one kilometre border to the border of the territorial waters twelve miles from shore).34 As is the case with the three acts that protect the environment, the question of the applicability of the Housing Act and the Spatial Planning Act to the EEZ is relatively easy: they do not apply, as the applicability of these acts is not explicitly stipulated. It is perhaps worthwhile to stipulate that the Dutch Nature Conservation Act 1998 and the Flora and Fauna Act are supposed to transpose the Birds and Habitats Directives into Dutch law. The changes that were made to the Dutch Nature Conservation Act 1998 for this purpose came into effect in October 2005. The government is still in the process of designating protected areas on shore on the basis of this act. The need to extend a part of the Environmental Management Act, the Nature Conservation Act 1998 and the Flora and Fauna Act to the EEZ has been recognized by the Dutch legislator. It has not yet led to the necessary legislative action.35

33

Actually, the Environmental Management Act, since September 2006, has stated that chapter 7, which is concerned with Environmental Impact Assessments, is applicable to the EEZ.

34

The same problem existed with the Environmental Management Act, but that deficit was repaired by a special act stating the competent authority (the Minister of Transport, Public Works and Water Management) for granting licences in territorial waters, see the Dutch Staatsblad (Government Law Gazette), 1998, 574.

35

In March 2003 the Dutch government answered questions by the Lower House that were posed in October 2000 concerning the transposition of the Directives. It stated that it would extend the necessary acts to the EEZ and designate appropriate areas (see Lower House Documents 2002-2003, 28 600 XII, no. 89).

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The main tool guiding both spatial and environmental aspects of offshore wind farms is the Public Works and Water Management Act (Dutch Wet beheer rijkswaterstaatswerken; Wbr) that was extended to the Dutch EEZ in December 2000. This is a fairly peculiar act. Not because it states that one needs a licence for practically any activity in public waters (for example, the EEZ), but because it entitles the administrative body that has the authority to grant the licence (the Minister for Transport, Public Works and Water Management) to integrate any public interest or value into his or her considerations, unless this public interest or value is protected by another act. The Dutch government has argued that while the Nature Conservation Act 1998, the Flora and Fauna Act and the Environmental Management Act do not apply to the EEZ, the interests and values that are protected by these acts can be considered when granting licences on the basis of the Public Works and Water Management Act.36 This act therefore has a broader application in the EEZ than it does in the territorial waters and on shore. Although this interpretation of the Public Works and Water Management Act by the Dutch government is generally followed, it remains remarkable that there is no legal basis to designate protected areas. No specific law concerned with either spatial planning or environmental protection that applies to the Dutch territory is applicable to the EEZ. The conclusion must be that the Dutch legal framework is inadequate in this respect given that no protected areas can be designated on the basis of legally binding Dutch law. European law demands the transposition of the Birds and Habitats Directive, with legally binding rules, to the EEZ. Since September 2006, far too late to comply with European demands, the obligation to perform an environmental impact assessment for planning and building wind farms in the EEZ was stipulated in the Environment Management Act. Although the Dutch legislator is well aware of the inadequate legal framework, there seems to be very little sense of urgency. The main legislative tool protecting the marine environment in light of wind farms in the EEZ is the Public Works and Water Management Act which grants licences on a first come, first served basis, and which is not normally used for spatial planning or protection of the marine environment.



3 Does Dutch Policy on Wind Farms at Sea Make up for the Inadequate Legal Framework?

It could well be that the apparently inadequate Dutch legal framework for the EEZ could in fact be made up for by policy rules produced by the Dutch administrative authorities. There are two aspects of Dutch policy 36

There is, however, no obligation to consider these interests and values. The Public Works and Water Management Act will be replaced by the more general Water Act in 2009, but this peculiarity seems to remain intact. See .

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to be explored. First there are the policy rules that are used as guidelines in granting licences under the Public Works and Water Management Act. Second there are several more general documents that express the Dutch government’s position on the sustainable use of the North Sea.



3.1 Policy for the Granting of Licences

When the Minister for Transport was first confronted with an application for a wind farm at sea within territorial waters, there was no appropriate knowledge and no real policy that could guide the decision. After receiving one application on the basis of the Public Works and Water Management Act, the government decided that a moratorium on wind farms at sea was best. The Minister therefore implemented a policy explaining some procedural rules and stating that no licences would be granted for wind farms in the EEZ after the policy came into effect on 8 May 2002.37 Why a moratorium? The Dutch legislator wanted to implement more efficient legislation, especially concerning the manner in which licences should be granted. New legislation would establish some sort of tender procedure which could determine the most efficient proposition for the production of renewable wind energy. From an economic and perhaps even from a sustainable development point of view this seems like a welcome idea. The question is whether a competition between applicants to decide the most economically efficient proposal for wind farms that best protects the marine environment is better than a system in which applicants are treated on a ‘first come, first served’ basis, as the Public Works And Water Management Act states. Another related question, but not the main reason for the moratorium, is concerned with the allocation of wind farms. Should the Dutch government not pursue the exploitation of the best-suited areas for the production of wind energy at sea, while excluding areas of specific ecological interest? Such a system would minimize harm to the environment and optimize energy production. The decision of the Minister of Transport to ban wind farms based on these rules was challenged before the highest administrative court which rules on these matters, the Dutch Raad van State (Council of State). It ruled that the Minister of Transport had justifiably come to the decision to have a moratorium on wind farms for the reasons just mentioned. However, it explicitly stated that it would only sanction the policy because the government had argued that new legislation would be in place by January 2005.38 The proposal for new legislation that would arrange for a system of concessions or tenders was received with enormous criticism by the Council of State in its capacity as the adviser on proposed new legislation. On 17 September 2004 the Dutch government rejected the idea of a tender system for the granting of licences. Forced by the 37

See Dutch Staatscourant (State Gazette) 2002, 85, p. 34.

38

Dutch Raad van State 14 April 2004, AB 2004, 192 with note by Van Hall.

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time frame it had set for itself, the Minister for Transport decided on a new policy that would provide appropriate and adequate guidelines for sustainable development of installations such as wind farms in the EEZ. The new policy came into effect on 31 December 2004. It states that licences will be granted on a first come, first served basis. Of course the policy outlines several criteria that must be met by applicants, all concerned with protecting the marine environment. One such criterion is that an environmental impact assessment must be carried out by the applicant. Normally, the applicant is obliged to perform an environmental impact assessment on the basis of the Dutch Environmental Management Act, specifically chapter 7. On the basis of this chapter a subordinate piece of legislation organizes the thresholds for carrying out an environmental impact assessment. Originally chapter 7 of the Environmental Management Act did not apply to the EEZ and therefore the obligation was simply based on the rules laid down in the policy and the general provision which states that an administrative body may demand relevant information from an applicant.39 The legislator acknowledged the legal deficit, but it still took until September 2006 to make the necessary emendations to chapter 7 of the Environment Management Act, which is now the one chapter of this act that applies to the EEZ. A second criterion of particular interest is that the policy guidelines for the Public Works and Management Act state that all national water, spatial and environmental plans and strategies have to be taken into consideration. These so-called Planologische Kernbeslissingen (Key Planning Decisions) are based on different Dutch acts, which are not applicable to the EEZ. Because of the rather formal and serious procedure involved in these decisions, they are in a sense democratically legitimated and can be seen as a strong government policy that will be binding on administrative authorities at state level. Formally speaking, however, a national spatial, water or environmental plan is of no importance to the EEZ for the laws they are based on do not apply there.



3.2 National Policy on the North Sea

Let us take a closer look at the national spatial, water and environmental strategies that have to be taken into consideration when making a decision about an application for a licence on the basis of the Public Works and Water Management Act. I will focus on the two most important documents: the Dutch Key Planning Decision on spatial planning Nota Ruimte (National Spatial Strategy)40 and the Dutch IBN 2015 (Integrated Management Plan for the North Sea 2015). 41

39

See Article 4:2 of the Dutch Algemene wet bestuursrecht (General Administrative Law Act).

40 41

See under spatial planning.

See (in Dutch).

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The Dutch Nota Ruimte reaffirms Dutch policy designating the North Sea as a crucial part of the Ecological Main Structure. This structure consists of areas that are of specific ecological interest. The North Sea environment is therefore protected by a rather strict policy that states – to put it briefly – that no new activities are allowed unless there is a clear public need and necessity for the activity. This policy, however, is less strict than the demands of the Habitats Directive. The draft of the Fifth Spatial Planning Framework Core Decision (Vijfde Nota Ruimtelijke Ordening) is the predecessor of the Nota Ruimte and never came into effect, but it did suggest preferred areas for wind farms in the North Sea. It was, however, replaced by the Nota Ruimte which abandoned the idea of preferred areas, stating that the North Sea is open for wind farms, excluding the territorial waters and some excluded areas that are used for shipping routes, clearways, military activities and the extraction of sand. This Nota Ruimte states that the Netherlands must achieve 6,000 MW of wind energy production at sea. Especially eye-catching is that this goal must be achieved for imperative reasons of overriding public interest. Taking into consideration the international and European obligations concerning the protection and exploitation of the North Sea, including the European initiative for a European Marine Strategy, several ministries agreed in 2005 on an Integrated Management Plan for the North Sea 2015. This policy is obviously closely related to the transposition of the Birds and Habitats Directives and aspects of the OSPAR Convention. 42 Any new activity, such as wind farms in the North Sea, must satisfy the criteria of this policy of which the most important are: 1) meet the precautionary principle of the OSPAR Convention and try to prevent and reduce environmental impact (by performing an Environmental Impact Assessment); 2) prove the need for and necessity of the activity (although this could be presupposed by the government’s policy); 3) meet some specific criteria for the use of space in the North Sea (among which is the possibility of a better location from an ecological or spatial point of view); 4) offer compensation when the activity damages the natural environment. This policy framework for the protection of the North Sea as a whole is close to the level of protection demanded by the Habitats Directive as laid down in Article 6 (3) and (4). The policy also seems relevant to the protection of MPAs on the basis of Annex V of the OSPAR Convention. However, the Dutch Integrated Management plan for the North Sea, 2015, provides even more stringent protection guidelines for areas that actually qualify as SPAs, SACs or MPAs. Research has shown that four areas in the EEZ will have to be designated as protected areas. These have not yet been proposed to the European Commission (Article 4 of the Habitats Directive) or to the OSPAR Convention. It is clear that, although the Dutch government is of good will, these areas cannot be designated under the Nature Conservation Act 1998 for this act is still not applicable to the EEZ. 42

It is also closely related to the European Marine Strategy at .

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The policy does not exclude these areas from the development of wind farms in the EEZ. It does, however, impose, although only in policy guidelines, the strict protection of areas of specific ecological interest similar to that stated in Article 6 (3) and (4) of the Habitats Directive. The Dutch policy refers to the Nature Conservation Act 1998, although it does not apply to the EEZ. The purpose of this policy is to preserve the ecological interests of the areas until their designation as a protected area is possible. However, the most important observation to make about the Nota Ruimte, concerning national policy in the North Sea, is that the Dutch government has been very careful in its choice of words to describe the importance of realizing 6,000 MW of wind energy in the EEZ. The realization of 6,000 MW of wind energy in the EEZ must be carried out for imperative reasons of overriding public interest, which are the exact words of Article 6 (4) of the Habitats Directive, implying that – in absence of alternative solutions to the plan or project43 – a project can be carried out even when there is an assessment of significant negative effects on a protected marine area. The need and necessity for the realization of wind energy up to 6,000 MW is a given. Seeing that the imperative reasons of overriding public interest should be considered on the basis of specific cases, 44 it is highly unlikely that a referral to this policy would be sufficient – in absence of alternative locations – to grant a licence for a wind farm that has a significant effect on a protected area. 45 At this moment, however, there are no areas that are protected by the Nature Conservation Act 1998 within the EEZ. The Habitats Directive has not been transposed to the EEZ and no areas have been proposed to the European Commission. The Dutch government is thus arguing that the policy that has been laid down in the Integrated Management Plan for the North Sea 2015 in fact sufficiently protects the environment in the EEZ. This argument seems plausible because government bodies at state level are obliged to operate in accordance with the policy. However, as many European law scholars know and the Dutch government acknowledges, European Directives must be transposed into Dutch law using legally binding rules, not just by policy. 46 Although the Dutch government’s legal framework for the Dutch EEZ is inadequate and does not provide for the effective transposition of the Birds and Habitats Directives into Dutch law, the Dutch National Spatial Strategy (Nota Ruimte) and the Integrated Management Plan for the North Sea 2015 (IBN 2015) which have to be taken into consideration when granting licences for wind farms on the basis of the Public 43

This restriction seems important, for there will most probably be an alternative location in the EEZ for a wind farm that will not have a significant effect.

44

See the guidance document on Article 6 (4) of the Habitats Directive (January 2007) at .

45

It is however not very likely that a wind farm will be proposed near a SPA or SAC.

46

See inter alia case C-415/01 Commission v. Belgium [2003] ECR I-2081; Jans and Vedder (2007) Chapter VI, paragraphs 2.2, 2.3 and 2.4 in particular.

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Works and Water Management Act, seems to imply a firm commitment to both marine protection and wind farm exploitation in the EEZ.



4 When does the Struggle End?

The Dutch legislator has, on the one hand, acknowledged the inadequacy of the legal framework for protecting the North Sea environment. On the other hand, the policy laid down in the Nota Ruimte and the IBN 2015 seems conducive to a sustainable use of the North Sea. Even with the policy in place, some questions remain. A first question is concerned with the selection of areas for wind farms. According to the policy, some areas are excluded, but not the four areas of specific ecological interest. Why are they not excluded? Even if the answer is that no one will build wind farms near those areas, we could argue that the best protection is to exclude them. The government did not specify the areas in which wind farms should be placed and therefore the conclusion might be that there is insufficient spatial planning for the North Sea. A second question concerns the selection of applicants. Even though the Dutch legislator intended to implement an act that would establish the procedure for the selection of an applicant, the Public Works and Water Management Act permit, the most important permit for wind farms in the Dutch EEZ, will be granted on a first come, first served basis. In other words there is no real selection procedure. Another important question is concerned with marine protection and the transposition of the Habitats Directive into Dutch law. What are the consequences of the statement that there are imperative reasons of overriding public interest to realize 6,000 MW of electricity production by wind farms in the EEZ by 2020? Although this goal and the acknowledgement of its importance is admirable – and although the Habitats Directive requires the search for alternative solutions to the plan or project – this general statement cannot replace the obligation to evaluate an application to build a wind farm which will have a significant effect on a protected site on a case-by-case basis. To adjust the legal framework to fit the policy and to comply with the requirements of transposing European Directives into legally binding rules, the Dutch Nature Conservation Act 1998 and the Flora and Fauna Act will be extended to the EEZ in 2008. After that, protected areas will be designated in 2009. The designation of areas must be in accordance with obligations and rights under international law, including UNCLOS. A new Spatial Planning Act (from 1 July 2008) will provide a basis for a physical plan – by authorities at state level – for the EEZ and parts of the territorial waters. Such a physical plan could legally implement the policy on the use of space in the Dutch area of the North Sea. The Dutch legislator has proclaimed that with these changes there will be a sufficient legal framework for balancing the economic exploitation of wind power against the protection of the marine environment in the Dutch North

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Sea, and not only to meet international demands for the production of renewable energy, but also to meet the need for the sustainable use of the North Sea. It is my opinion that the legal framework that will be implemented could indeed be considered sufficient, but only the future will tell whether the framework will have appropriately and adequately protected the marine environment for exploitation by, and enjoyment of future generations.

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Bibliography Bodansky, Brunnée and Hey (2007) D. Bodansky, J. Brunnée and E. Hey (eds), The Oxford Handbook of International Environmental Law, (Oxford: Oxford University Press, 2007).

Jans and Vedder (2008) J.H. Jans and H.H.B. Vedder, European Environmental Law, (Groningen: Europa Law Publishing, 2008).

Kapteyn, Verloren van Themaat and Gormley (1998 P.J.G. Kapteyn, P. Verloren van Themaat and L.W. Gormley, Introduction to the Law of the European Communities, (The Hague: Kluwer Law International 1998).

Larsen and Guillemette (2007) J. K. Larsen and M. Guillemette, ‘Effects of wind turbines on flight behaviour of wintering common eiders: implications for habitat use and collision risk’, Journal for Applied Ecology (Vol. 44) 2007, p. 516 ff.

Lee (2005) M. Lee, EU Environmental Law. Challenges, change and decision-making, (Oxford: Hart, 2005).

Wahlberg and Westerberg (2005) M. Wahlberg and H. Westerberg, ‘Hearing in fish and their reactions to sounds from offshore wind farms’, Marine Ecology Progress Series (Vol. 288) 2005, p. 295 ff.

WCED (1997) Report of the World Commission on Environment and Development, Our Common Future (The Brundtland Report), chapter 7, no. 78, and chapter 10.

Table of Cases • Case C-415/01 Commission v. Belgium [2003] ECR I-2081. • Case C-6/04 Commission v. UK [2005] ECR I-9017. • English High Court of Justice 5 November 1999, case CO/1336/1999 • Raad  van State 14 April 2004, AB 2004, 192.

Table of Legislation • Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas 1992 (ASCOBANS). • Agreement on the Conservation of African-Eurasian Migratory Waterbirds 1995 (AEWA). • Convention for the Protection of the Marine Environment of the North-East Atlantic 1992 (OSPAR). • Convention on Biological Diversity 1992 (CBD). • Convention on the Conservation of European Wildlife and Natural Habitats 1979 (Bern Convention).

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• Convention on the Conservation of Migratory Species of Wild Animals 1979 (CMS). • Council Directive 79/409/EEC on the Conservation of Wild Birds (Birds Directive). • Council Directives 97/11/EC and 85/337/EEC on the assessment of the effects of certain public and private projects on the environment. • Council Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora (Habitats Directive). • Environmental Management Act (Wet milieubeheer). • European Parliament and Council Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment. • General Administrative Law Act (Algemene wet bestuursrecht). • Public Works and Water Management Act (Wet beheer rijkswaterstaatswerken). • United Nations Convention on the Law of the Sea 1982 (UNCLOS).

List of Abbreviations AB Administratiefrechtelijke beslissingen – Rechtspraak Bestuursrecht ASCOBANS A greement on the Conservation of Small Cetaceans of the Baltic and North Seas AEWA Agreement on the Conservation of African-Eurasian Migratory Waterbirds. CBD Convention on Biological Diversity EEZ Exclusive Economic Zone MW Megawatt EC European Community EC Treaty European Community Treaty ECJ European Court of Justice ECR European Court Reports Eds. Editors ff. following IBN 2015 Integraal Beheerplan Noordzee 2015 (Integrated Management Plan for the North Sea 2015) MPA Marine Protected Areas No. Number p. page(s) SPA Special Protection Areas SAC Special Areas of Conservation UNCLOS United Nations Convention on the Law of the Sea Wbr Wet beheer rijkswaterstaatswerken (Public Works and Water Management Act)

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