THE LAW OF SUSTAINABLE DEVELOPMENT AND GOOD GOVERNANCE-law and development teaching materia CHAPTER SIX
THE LAW OF SUSTAINABLE DEVELOPMENT AND GOOD GOVERNANCE
Besides its legal aspect, sustainable development has clear philosophical, scientific, economic and political dimensions. However, like all the social institutions created by man so far, the institution of sustainable development too will acquire its specific form via the science of law and its application by court decisions. In other times, philosophy in particular paved the way for the work of lawyers. Today, unfortunately, lawyers have little to gain from the other sciences where sustainable development is concerned. The theory of sustainable development is new and still under development. In contrast, the social problems that must be solved by sustainable development cannot afford to wait. The purpose of this chapter is therefore , to enable law students to grasp the primary knowledge on the interrelation of law and sustainable development.
6.1 From Economic Development to Sustainable Development
The Rio Conference on the Environment (1992) will live on in mankind’s history as the occasion which put an end to obsession with economic development. That "development" was no more than misrepresented growth of wealth along with a corresponding frantic squandering of mankind’s natural reserves. The Rio Conference is memorable because it succeeded in offering mankind the new
vision of sustainable development: no longer quantitative but qualitative development, in other words, a balanced striving for all human values, whether material or intangible, in harmony with nature.
In reality, what happened was that misconceptions were abandoned and development resumed its true meaning and moral content, which does not consist in the consumption of material goods but in improving education and health, securing a good natural environment, establishing harmonious co-existence between people in a just and peaceful world, and encouraging the stable joint development of civilization and nature, in other words a development having all that "quality of life" which had ceased being accessible to most of mankind. "Quality of life" includes, in particular, employment, which in the developed countries, however, can only be achieved by appropriate restructuring of their sustainable economy and not by its expansion. Thus, after Rio insistence a unilateral economic growth is not just an outdated policy but one that is both illegal and unethical.
6.2. What is Sustainable Development Law?
What is sustainable development, and what, in particular, is ‘international law on sustainable development’ (or in short, ‘sustainable development law’)? Certain international processes have provided guidance, and commonly accepted elements of answers, to these questions. Sustainable development is most commonly defined as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” In short tautology, it means ‘development that is sustainable.’ Development can be defined as a collective process of change toward improvements in quality of life for human beings and their communities, and sustainability can be seen to refer to the need for development to be integrated, socially, economically and environmentally sound, oriented to the long-term, and hence, able to last. The concept of sustainable development, in international law, requires accommodation, reconciliation and integration between economic growth, social justice (including human rights) and environmental protection objectives, towards participatory improvement in collective quality of life for the benefit of both present and future generations. The term ‘sustainable development law’ describes an emerging corpus of international legal principles and instruments which address the intersections between international economic, environmental and social law (including human rights law), towards development that can last for the benefit of present and future generations.
6.3 Sustainable Development in International Policy
Our Common Future, the influential 1987 Brundtland Report, sought for solutions to parallel problems of global environmental degradation and global lack of social and economic development, by asking for these challenges to be addressed in an integrated way, for the interests of present and future generations. In the Brundtland Report, as mentioned above, sustainable development was defined as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”
At the United Nations Conference on Environment and Development, the 1992 Rio Declaration, States that it is committed to “the further development of international law in the field of sustainable development” (Principle 27). In the 1992 Agenda 21 States that this involved the “further development of international law on sustainable development, giving special attention to the delicate balance between environmental and developmental concerns” (1.a).
In the 1997 Programme of Action for Further Implementation of Agenda 21, States further agreed that “it is necessary to continue the progressive development 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.” (para. 109).
The 2002 World Summit on Sustainable Development Johannesburg Declaration specifically commits to “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” (para. 5). The Johannesburg Plan of Implementation mandated the UN Commission on Sustainable Development to “(e) 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 related to international legal instruments and mechanisms.” (para 148 at e)
In international law, the concept of sustainable development has gained some definition over the course of the past two decades. It is not clear that sustainable development has, as yet, the character of a customary norm of international law. But neither is it void of all meaning or normative value in international law. Rather, it can be argued that the concept of sustainable development has a dual nature in international law. It can be considered as an interstitial norm, which serves to reconcile other conflicting norms related to the environment, the economy and social development (including human rights), and also simply the object and purpose of many international treaties and legal instruments. In the recent decisions of international courts and tribunals, the concept of sustainable development facilitates the reconciliation and integration of other norms concerning socio-economic development and protection of the environment. It appears to have played such a role in Gabcikovo – Nagymaros Case at the International Court of Justice:
“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.” (Emphasis added).
The Permanent Court of Arbitration reaffirmed this reasoning in its Arbitral Award for the Arbitration Regarding the Iron Rhine ("Ijzeren Rijn") Railway (Belgium v. Netherlands) (May 24, 2005). In this case, The Netherlands, which had created nature reserves along the path of the historic ‘Iron Rhine’ railway line, sought to prevent its reactivation. Belgium argued that the upgrading of the Iron Rhine Railway was partof a shift from road to rail transportation, assisting in the reduction of greenhouse gases, in order tocontribute to sustainable development. The Tribunal balanced environmental protection against socioeconomicdevelopment, finding that the application of environmental measures by the Netherlands couldnot amount to a denial of Belgium’s transit right, nor could these measures render the exercise of such aright unreasonably difficult. In its reasoning, the Tribunal refers to the “notion[ ]… of sustainabledevelopment”, and at para. 59, states that:“[e]nvironmental law and the law on development stand not as alternatives but as mutuallyreinforcing, integral concepts, which require that where development may cause significant harmto the environment, there is a duty to prevent, or at least mitigate such harm. This duty, in theopinion 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 ofspecific treaties between the Parties.”
The implications of these cases for the meaning of the sustainable development in general international law are clear. In instances where trade liberalization rules, as economic development norms, intersect with environmental norms, the concept of sustainable development may play a normative role in guiding a balanced, mutually supportive and integrated outcome. It may also, as is touched upon below, play such a role when social development norms are involved.
In international treaty law, sustainable development is an agreed objective of many international trade treaties, both at the global and regional levels. As such, sustainable development can be considered part of the ‘object and purpose of a growing number of treaties, and therefore, directly relevant in the interpretation of their provisions. The concept appears, often as an objective or preambular reference, in most international statements and declarations related to environmental, social and economic issues since the 1992 Rio de Janeiro Earth Summit. It has also featured as an object and purpose of many international economic, social and environmental treaties involving developed and developing countries, as a concept which guides the decisions of international courts and tribunals, and the holdings of judges in national courts around the world.
To date only the 2002 Convention for Cooperation in the Protection and Sustainable Development of the Marine and Coastal Environment of the Northeast Pacific provides a definition for ‘sustainable development’. At article3(1)(a), the parties adopted 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, local, ethnic and cultural diversity, and full public participation, peaceful coexistence in harmony with nature, without prejudice to and ensuring the quality of life of future generations.”
According to international treaties and tribunals, the concept of sustainable development is clearly relevant to international law related to the environment and to natural resources. But it is also directly relevant for economic and trade law, and has been further defined in these contexts. The 1994 Marrakesh Agreement Establishing the World Trade Organization recognizes sustainable development among its objectives. This is confirmed in the 2001 Doha Declaration declares: “We strongly reaffirm our commitment to the objective of sustainable development, as stated in the Preamble to the Marrakesh Agreement.” And several Reports of the WTO Panel and Appellate Body directly address the concept of sustainable development in world trade law. This social element was also later highlighted in the outcomes of the 2002 World Summit for Sustainable Development, which concluded, in the Johannesburg Plan of Implementation, at para. 140 (c), that there was a need to “promote the full integration of sustainable development objectives into programmes and policies of bodies that have a primary focus on social issues”, noting that, “[i]n particular, the social dimension of sustainable development should be strengthened…”
Sustainable development law and policy has only begun to be addressed by existing institutions, and not in an adequately integrated way. In public international law, the overarching concept of sustainable development vitiates fragmentation. It inspires cooperation, coherence and innovative governance systems. Further research need to be undertaken on the necessary principles, rules and policies, in order to make a valuable contribution to the development of this field, assisting scholars, countries and international institutions to formulate international law in a more integrated, principled manner, to address
intersections between different international legal regimes and to implement the myriad new international treaties and instruments in the field of sustainable development.
6.4 Sustainable Development and Good Governance
6.4.1 The Concept of Good Governance
Good governance, as a concept, is applicable to all sections of society such as the government, legislature, judiciary, the media, the private sector, the corporate sector, the co-operatives, societies registered under the Societies Registration Act, duly registered trusts, organizations such as the trade unions and lastly the non- government organizations (NGOs). Public accountability and transparency are as relevant for the one as for the other.
The foremost test of good governance is the respect for rule of law. As the saying goes, howsoever high a person may be, the law is above him and has to be considered supreme. The governance must be based on rule of law. Every lawfully established government must govern according to the laws of the land. All its actions must uphold the rule of law and any effort to take the law in one’s own hand or to undermine the law by anyone, howsoever high and mighty he may be, must be dealt with speedily, decisively and in an exemplary manner. It is unfortunate that even after fifty years of independence, one cannot say with confidence that the governance in most states is based on rule of law.
In any discussion on good governance, attention must be focused on the primary responsibilities of the government. These must include the maintenance of law and order, administration of justice, and welfare of economically and socially weaker sections of society in terms of provision of safety net for them. Here again, it is seen that, in its anxiety to do thousand and one other things, these primary responsibilities have been neglected over the years.
6.4.2 Good Governance and Sustainable Development
It is widely recognized that good governance is essential to sustainable development. Well-functioning legal institutions and governments bound by the rule of law are, in turn, vital to good governance. Weak legal and judicial systems – where laws are not enforced and non-compliance and corruption are the norm – undermine respect for the rule of law, endanger environmental degradation, and undermine progress towards sustainable development.
Practitioners in the development field have increasingly turned their attention to reforms to improve legal and judicial institutions and promote the rule of law and good governance. For example, various United Nations agencies such as the United Nations Environment Programme (UNEP) and the United Nations Development Programme (UNDP), as well as the World Bank and other regional development banks, are directing increasing resources to reform legal and judicial institutions. While many factors play an important role in development, good governance is now recognized as playing an essential role in the advancement of sustainable development.
Good governance promotes accountability, transparency, efficiency, and rule of law in public institutions at all levels. In addition, it allows for sound and efficient management of human, natural, economic, and financial resources for equitable and sustainable development. Moreover, under good governance, there are clear decision making procedures at the level of public authorities, civil society participation in decision-making processes, and the ability to enforce rights and obligations through legal mechanisms.
These aspects of good governance do not in themselves ensure that society is run well nor do they guarantee sustainable development. However, their absence severely limits that possibility and can, at worst, impede it. Without proper functioning institutions of governance based on the rule of law that promote social stability and legal certainty, there cannot be investment and assumption of risk that form the basis of market economy development, let alone sustainable development. Indeed, the strength of the rule of law is the best predictor of a country’s economic success. Furthermore, deficiency in the rule of law encourages high rates of corruption, with further devastating consequences on the confidence of economic actors. This lack of investment, in turn, slows economic growth and consequently deprives the governments of resources to invest in education, social safety nets, and sound environmental management, all of which are critical for sustainable development.