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Critically discuss the concept of sustainable development and the way it has been implemented in international law....

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Critically discuss the concept of sustainable development and the way it has been implemented in international law. V Lowe – International Law Chapter 1 

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The world needs international law because no State acting alone can achieve its aims o International cooperation is necessary and international law is the framework in which international cooperation takes place Unilateral action is ineffective, possibly even counterproductive International law is concerned with the action and treatment of individuals, corporations, IOs and states o Lawyers, environmental campaigners and governments will scrutinise the way in which national environmental laws are drafted and imposed and measure them up against the State’s international obligations International law flows through all national law Little thought is given to the workings of international law until it ceases to work. Many questions can be asked: o Does it matter if international law is violated? o Are there right and wrong answers in international law, or is it all up for interpretation? o What can international law do?

Bodansky D, The Art and Craft of International Environmental Law (2010) chapters 1-2 What is International Environmental Law (IEL)? Environment  

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Few definitions can be found in international agreements IEL focuses on the interactions of humans and the natural world – presupposes a separation between humans and nature o Some changes are natural eg volcanoes, and some are caused by humans and are controlled by legal regulation eg pollution  It is the human-induced changes that IEL focuses on People’s perception of what constitutes an environmental problem has changed over time

International 

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What makes an environmental issue international? o Sometimes it is obvious eg acid rain in Europe, pollutants originating in one country causes environmental damage in another Transboundary resources and transboundary pollution – boundary water and migratory bird treaties Global problems – involve areas beyond national jurisdiction eg whaling, pollution of the high seas All of these problems involve physical spill overs, making international cooperation essential Economic spill overs – conservation of the African elephant is not a physical spill over as the elephants do not typically migrate across the border BUT they are at risk of poachers in East Africa One country can have substantial effects on the environment of another country through not only physical pollution, but through investment and trade Issues become international when the international community takes them up eg the giant panda is a non-migratory Chinese species whose habitat is disappearing because of the growth of human population o Psychological spill over – people in other countries value the panda and desire its continued existence

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Physical, economic and psychological spill overs are all international – they involve more than one country so cannot be addressed by individual countries acting alone International agreements may impose requirements concerning national implementation resulting in similar national laws throughout the world OR convergent national laws (eg on public participation) may inspire the negotiation of an international agreement

Law  

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Some argue that law requires enforcement mechanisms and that the absence of such makes IEL simply political or moral norms A norm qualifies as a law if it was created through a law-making process eg the UNFCCC o This is not so simple in respect to treaties, even though they are the source of most international environmental standards Environmental agreements sometimes contain ‘non-binding’ norms – a recommended course of action o BUT norms that lack a legal source are sometimes treated as ‘binding’ by states Soft law – similar to hard law such as treaties but fall short of a ‘legal’ source

Chapter 2 – How We Got Here: A Brief History  

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IEL is still a comparatively young field In the 20th century international law expanded in two directions: o How states treat their own citizens (human rights law) o How states and other international actors cooperate to achieve common ends such as economic development and social welfare  The development of IEL comes under this, founded on the common interest of humankind in protecting the natural environment The growth of IEL can be portrayed as a -cause-and-effect relationship between the growing scale of environmental problems and the political-legal response The growth of environmental consciousness is as follows: o A problem is discovered with alarm, often as a result of some dramatic event like an oil spill o Public interest surges, leading to a flurry of new initiatives o Environmental responses diffuse to other countries o The difficulties and costs of addressing the problem slowly become apparent o People become discouraged, bored or diverted by the emergence of a new issue o The earlier issue is then addressed in a routine, low-key manner Three waves of emergence: o Conservationist stage – focusing on the protection of wildlife from the late 19th century to the first half of the 20th century o Pollution-prevention stage – environmental revolution of the 1960s and early 1970s o Sustainable development stage – mid 1980s to present

The Classical Approach: Applying International Law to Environmental Disputes  

Classical international law relies on the premise of sovereignty, states can do what they want in their own state and cannot interfere with another state Classical international law attempted to resolve disputes on a case-by-case basis – adjudicating the competing sovereign claims of the states concerned o Transboundary pollution – does the polluting state have the sovereign right to do whatever it chooses within its territory, even if its actions cause damage to another state? Eg Rio Grande dispute

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Or does the injured state have a right of territorial integrity, which limits the polluting state’s right to use its territory as it pleases? Eg Trail Smelter Decisions were aimed at determining the respective rights and responsibilities of each state o Trail Smelter – a state’s freedom to use its territory as it pleases must yield to the right of other states to be free of significant injury

Nature Conservation in the Early 20th Century    

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1872 USA established the first national park, other countries soon followed suit Government agencies eg National Forest Service in the United States were created, and also NGOs eg the National Trust in England Although it was a national focus, the international dimension received attention eg problems of migratory species Initial stage of IEL was important but had limitations: o Focus of interest was narrow – early conservation efforts didn’t reflect a generalised concern about environmental protection or pollution  It instead focused on the rational use of natural resources by humans eg protecting birds for agricultural use o Focused on direct threats eg the hunting of wildlife by humans, rather than indirect threats eg habitat loss o States adopted conventions in a piecemeal manner – little development of institutions Although they had little effect, these agreements and conventions put environmental issues on the international agenda

Emergence of Pollution Issues: 1962-1975    

Environmental revolution – mass movement Focused on broader issues than just conservation of nature as before - - pollution, technology, population, economic growth Oil pollution from tankers was the first multilateral pollution problem to receive international attention Dangers of nuclear weapons and nuclear energy also received international attention o Nordic countries’ concern about acid rain led them to propose an international conference on the environment in Stockholm in 1972  Led to the negotiation of several treaties eg London Dumping Convention, World Heritage Convention – Stockholm didn’t directly cause these BUT the intense interest in the environment caused by Stockholm served as a catalyst

Sustainable Development: 1987-present  

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After a decline in the 1970s and early 1980s, interest was revived with the discovery of the hole in the Antarctic ozone layer – beginning of concern about global warming 1987: o Adoption of Montreal Ozone Protocol – cut the use of ozone-depleting substances  Widely considered to be the most successful environmental agreements to date o Publication of Our Common Future by the World Commission on Environment We now deal with more complex environmental problems eg climate change, biological diversity o These problems might require fundamental economic and social changes rather than a relatively simple pollution prevention fix eg climate change implicates virtually every aspect of countries’ economies, many more actors have a stake in the outcome and may seek to influence the decision-making process Developing countries play a bigger role than they did before

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o BUT in the Kyoto Protocol developing countries have fewer obligations because they are less responsible for causing the problems, and have less capacity to act Precautionary principle – the current environmental problems involve a high degree of scientific uncertainty o Action urged against environmental threats even in the face of scientific uncertainty Brundtland Commission definition of sustainable development: ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’ o Two main themes:  Integration – environmental issues are important aspects of economic and social decision-making so should be the concern of all government departments  Goal of EIA requirements adopted in 1970s  Long-term planning – managing resources sustainably so they will be available to future generations Rio Summit was the focal point of the third phase o The momentum gathered by it led to a flurry of treaty-making – the most ambitious and politically important being the Kyoto Protocol

Contemporary IEL 

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Proliferation of treaty regimes has led to concerns that participation in the international environmental process is becoming a burden, particularly for developing countries o Too many meetings to attend, too many secretariats to finance o There is too much environmental law – treaty congestion  Potential for duplication of effort, lack of coordination, conflict between different regimes Some ask whether the accumulation of IEL has done anything for the environment o Despite proliferation of international environmental institutions, environmental threats like climate change have worsened

Seminar 4 – Sustainable Development, Conservation and Intergenerational Equity 1 What is ‘sustainable development’, and how does it differ from ‘conservation’ or 'sustainable use'? Who should decide what constitutes sustainable development within a given society? 

When applied as a principle, sustainable development means the application of other principles of international environmental law with solid customary grounding, such as prevention and its recognised procedural expressions through cooperation and EIA

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Sustainable development – development which can be maintained for a long time without undue damage to the environment o Conservation of resources is a way to achieve sustainable development because our wants are endless, but resources are not limitless

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Sustainable use – the use of components of biological diversity in a way and at a rate that it 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

2 Is sustainable development a legal principle? Can development proposals (as in Gabcikovo Dam or Pulp Mills) be judicially reviewed by the ICJ on the ground that they are ‘unsustainable’? If not, what role can international courts play in giving effect to sustainable development?  

Gabcikovo Dam ICJ referred to inclusiveness of the concept of sustainable development, without giving it the character of a primary norm or ‘principle’

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Pulp Mills Reaffirmed Dam, sustainable development is a concept or objective that must guide the negotiations between the parties

3 What is ‘intergenerational equity’? Is the concept reflected in international environmental law? If so, who can enforce it?   

Aims to distribute the quality and availability of natural resources and the necessary efforts for their conservation between present and future generations Manifestation of the old idea of conservation and new idea of sustainable development Traces of it in old and new instruments o International Convention for the Regulation of Whaling 1946 o Stockholm Declaration 1972 o Brundtland Commission 1987 o Rio Declaration

4 What are the Sustainable Development Goals? What is their status in international law? 2015 Sustainable Development Goals   

Global goals set by the UN General Assembly in 2015 for the year 2030 All are broad based and interdependent Each have a list of targets which are measured with indicators

1. No poverty 2. Zero hunger 3. Good health and well-being 4. Quality education 5. Gender equality 6. Clean water and sanitation 7. Affordable and clean energy 8. Decent work and economic growth 9. Industry, innovation and infrastructure 10. Reducing inequality 11. Sustainable cities and communities 12. Responsible consumption and production 13. Climate action 14. Life below water 15. Life on land 16. Peace, justice and strong institutions

17. Partnerships for the goals  

Policy framework to mobilise efforts at the international, national and domestic level Adopted by states but not legally binding

1992 Rio Declaration on Environment and Development    

Short document produced at the Conference on Environment and Development (Earth Summit) 27 principles intended to guide countries in future sustainable developed Signed by over 170 countries Precautionary principle (15) and polluter pays principle (16)

Vinuales J E and Dupuy P-MD, International Environmental Law (Cambridge University Press 2018) Chapter 3   

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Sustainable development initially introduced in a join report published by UNEP, WWF and IUCN o Gained recognition with the Brundtland Commission’s report ‘Our Common Future Then featured widely in many texts after Rio Conference Principle 4 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’ o Further specified at Johannesburg Summit of Sustainable Development ILA adopted New Delhi Declaration on the Principles of international Law Related to Sustainable Development. Contains main components that legal commentators attach to sustainable development: o The need to take into account the interests of future generations o The duty of every state to exploit its natural resources in a sustainable way o In doing so, the duty of each state to take into account the interests of other states o The duty of states to incorporate environmental considerations into their development policies Gabcikovo Dam – court observed that the need to reconcile economic development with protection of the environment is expressed in the concept of sustainable development

Barral V ‘Sustainable Development in International Law: Nature and Operation of an Evolutive Legal Norm’ (2012) 23 European Journal of International Law 377     

Flexible content of what has been termed sustainable development in both cases, academics have struggled to ascertain sustainable development’s legal nature Lowe – sustainable development as an interstitial or modifying norm which exerts its normative influence as an interpretative tool in the hands of judges Judicial bodies have used it to legitimise recourse to evolutive treaty interpretation, as a rule of conflict resolution and even to redefine conventional obligations Beyond this function, by laying down an objective to strive for in hundreds of treaties, sustainable development primarily purports to regulate state conduct As an objective it lays down a relative obligation to achieve sustainable development

o Such obligations are known as obligations of means or of best efforts o Legal subjects are ultimately under an obligation to promote sustainable development 

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Sustainable development is an important tool for judges as it can be used to weigh on the interpretation of existing norms o Legitimises a dynamic interpretation of treaty rules o May also lead the judge to revise the treaty Integration of environmental norms into a treaty that did not necessarily take them into account Balancing exercise between conflicting norms and interests that sustainable development requires Sustainable development’s interpretative function is significant for the power of liberty it grants judges BUT it is rare that disputes are brought before the judge, however powerful the interpretive function may be, sustainable development cannot be limited to a function only To limit it would ignore it as a primary rule of law aimed at regulating conduct in treaties Primary enforcers of international norms are states o Although sustainable development may be used by judges, it is not addressed to them o It is addressed to the legal subjects – the states States are under an obligation to pursue sustainable development – they are bound by an obligation of means o By implementing treaties they contribute to making sustainable development requirements real

Seminar 7 – Climate Change, Sustainability and Carbon Policy UNFCCC       

United Nations Framework Convention on Climate Change International environmental treaty Adopted 1992 and opened for signature at the Earth Summit in Rio de Janeiro Entered into force in 1994 after it was ratified by a sufficient number of countries Objective – ‘stabilise greenhouse gas concentration in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’ Non-binding limit on greenhouse gas emissions for individual countries o No enforcement mechanisms Outlines how specific international treaties (protocols or Agreements) may be negotiated to specify further action towards climate change

Kyoto Protocol  

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International treaty extending the UNFCCC Commits state parties to reduce greenhouse gas emissions o Based on the scientific consensus that global warming is occurring and it is likely that human-made CO2 emissions have caused it Common but differentiated responsibilities o Obligation on developed countries because they are responsible for greenhouse gases Developing countries only had to reduce emissions on a voluntary basis o Problematic – China and India are developing countries Top-down targets and timetables approach – now criticised o Parties given a goal to achieve by a set time – they had no say in their goals

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Problems after first commitment period – Japan, NZ and Russia struggled to negotiate targets & Canada and US were not even parties o Left only EU and few other countries – how could any significant reduction be made with so few parties?

Paris Agreement      

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Protocol in everything but name Hoped to be fully implemented by 2020 Abolished top-down targets approach – parties set their own goals creating a bottom-up approach Let parties decide how to re...