Sustainable Development Principles in the Decisions of International Courts and Tribunals

1992-2012

Marie-Claire Cordonier Segger, Judge C.G. Weeramantry, Marie-Claire Cordonier Segger, Judge C.G. Weeramantry

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781317669999
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

The 2002 New Delhi Declaration of Principles of International Law relating to Sustainable Development set out seven principles on sustainable development, as agreed in treaties and soft-law instruments from before the 1992 Rio 'Earth Summit' UNCED, to the 2002 Johannesburg World Summit on Sustainable Development, to the 2012 Rio UNCSD. Recognition of the New Delhi principles is shaping the decisions of dispute settlement bodies with jurisdiction over many subjects: the environment, human rights, trade, investment, and crime, among others.

This book explores the expanding international jurisprudence incorporating principles of international law on sustainable development. Through chapters by respected experts, the volume documents the application and interpretation of these principles, demonstrating how courts and tribunals are contributing to the world's Sustainable Development Goals, by peacefully resolving disputes. It charts the evolution of these principles in international law from soft law standards towards recognition as customary law in certain instances, assessing key challenges to further judicial consideration of the principles, and discussing, for instance, how their relevance for compliance and disputes related to the 2015 Paris Agreement on climate change. The volume provides a unique contribution of great interest to law and policy-makers, judges, academics, students, civil society and practitioners concerned with sustainable development and the law, globally.

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1 Introduction

Marie-Claire Cordonier Segger and H.E. Judge C.G. Weeramantry

We can be the first generation to succeed in ending poverty; just as we may be the last to have a chance of saving the planet.

(Transforming our World, United Nations General Assembly Res 70/1 2015, Para 50)

In the United Nations General Assembly on the 25–27 September 2015, heads of State and leaders from over 150 countries adopted a new global agenda for sustainable development. Entitled Transforming our World: The 2030 Agenda for Sustainable Development, this Agenda aims to provide a plan of action for ‘people, planet and prosperity.’¹ The Agenda builds on the Millennium Development Goals, and reflects the outcomes of nearly 50 years of international policy debate through the 1972 Stockholm UN Conference on the Human Environment (UNCHE), the 1992 Rio UN Conference on Environment and Development (UNCED),² the 2002 Johannesburg World Summit on Sustainable Development (WSSD), the 2012 Rio UN Conference on Sustainable Development (UNCSD), and beyond, recognizing that the eradication of poverty is an indispensable requirement for sustainable development.

As recognized in the Agenda, in this time of immense challenge to sustainable development, billions of the world’s citizens continue to live in poverty and are denied a life of dignity. Indeed, heads of State admit:

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[t]here are rising inequalities within and among countries. There are enormous disparities of opportunity, wealth and power. Gender inequality remains a key challenge. Unemployment, particularly youth unemployment, is a major concern. Global health threats, more frequent and intense natural disasters, spiralling conflict, violent extremism, terrorism and related humanitarian crises and forced displacement of people threaten to reverse much of the development progress made in recent decades. Natural resource depletion and adverse impacts of environmental degradation, including desertification, drought, land degradation, freshwater scarcity and loss of biodiversity, add to and exacerbate the list of challenges which humanity faces. Climate change is one of the greatest challenges of our time and its adverse impacts undermine the ability of all countries to achieve sustainable development. Increases in global temperature, sea level rise, ocean acidification and other climate change impacts are seriously affecting coastal areas and low-lying coastal countries, including many least developed countries and small island developing States.

In essence, the Agenda notes, “the survival of many societies, and of the biological support systems of the planet, is at risk.”³

The Agenda also recognizes and celebrates a time of immense opportunity. Heads of State point to significant progress in meeting many development challenges. They note that:

[w]ithin the past generation, hundreds of millions of people have emerged from extreme poverty. Access to education has greatly increased for both boys and girls. The spread of information and communications technology and global interconnectedness has great potential to accelerate human progress, to bridge the digital divide and to develop knowledge societies, as does scientific and technological innovation across areas as diverse as medicine and energy.⁴

In this context, on the UN’s Seventieth Anniversary, countries and many thousands of others resolved to work together to meet 17 integrated Sustainable Development Goals, backed by 169 targets which balance the environmental, social and economic dimensions of sustainable development. They seek to end poverty and hunger everywhere; to combat inequalities within and among countries; to build peaceful, just and inclusive societies; to protect human rights and promote gender equality and the empowerment of women and girls; and to ensure the lasting protection of the planet and its natural resources. They also resolved to create conditions for sustainable, inclusive and sustained economic growth, shared prosperity and decent work for all, taking into account different levels of national development and capacities.⁵

These Sustainable Development Goals invoke a commitment from all countries and all stakeholders, acting in collaborative partnership, to “take the bold and transformative steps which are urgently needed to shift the world on to a sustainable and resilient path.”⁶ As noted by the UNGA, it is an “Agenda of unprecedented scope and significance . . . accepted by all countries and is applicable to all . . . universal goals and targets which involve the entire world, developed and developing countries alike.”⁷

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As further noted at Paragraph 10, the new Agenda is grounded in the Universal Declaration of Human Rights,⁸ international human rights treaties, the Millennium Declaration⁹ and the 2005 World Summit Outcome,¹⁰ and informed by other instruments such as the Declaration on the Right to Development,¹¹ and will be “guided by the purposes and principles of the Charter of the United Nations, including full respect for international law.”¹² Further, as declared firmly at Paragraph 12, through the Agenda, countries “reaffirm all the principles of the Rio Declaration on Environment and Development, including, inter alia, the principle of common but differentiated responsibilities . . .”¹³

World leaders commit to implement the Agenda for the full benefit of all, for today’s generation and for future generations. At Paragraph 21, countries pledge to “work to implement the Agenda within our own countries and at the regional and global levels, taking into account different national realities, capacities and levels of development and respecting national policies and priorities.”¹⁴ In doing so, as stated in Paragraph 18, they reaffirm their “commitment to international law and emphasize that the Agenda is to be implemented in a manner that is consistent with the rights and obligations of States under international law.”¹⁵

As the United Nations Secretary-General noted in the World Summit on Sustainable Development in Johannesburg, South Africa, in 2002 it was already time to face an uncomfortable truth. “[T]he model of development we are accustomed to has been fruitful for the few, but flawed for the many. A path to prosperity that ravages the environment and leaves a majority of humankind behind in squalor will soon prove to be a dead-end road for everyone.” In academia or professional practice, it is not enough to simply recognize the immensity of this challenge and then stand aside. It is necessary to debate, develop and implement innovative, integrated solutions on all levels. The Secretary-General continued: “Unsustainable practices are woven deeply into the fabric of modern life. Some say we should rip up that fabric . . . I say we can and must weave in new strands of knowledge and cooperation.”¹⁶

A very important aspect of this ‘fabric of modern life’ is found in our evolving laws and justice systems. These systems are intricately woven upon the shared values, morals and ethics of an increasingly interconnected and interdependent world. Among the shared values, there is found a growing sense of respect for the common interest of all, a sense of responsibility for our common future. This responsibility, in certain instances recognized as a duty, engenders special attention to the needs of the most vulnerable and voiceless, especially the world’s poor, and its shared environment.

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Indeed, the need for more sustainable development has been the subject of important international treaty negotiations for several decades since identification of this global objective in the 1987 Brundtland Report and its recognition by the international community in the 1992 Rio Declaration. The precise contours of what kind of development is most sustainable, however, remained difficult to define for many years, leaving many States committed to implementation with little guidance. Legal scholarship contributed some clarity, analysing ‘soft law’ declarations and standards, also ‘hard law’ treaties in the field. The Sustainable Development Goals provide further guidance, outlining universal targets for more sustainable development that all countries can aspire to support.

It has been observed that a great transition is currently occurring in international law.¹⁷ Though this transformation is still opposed by many, it is to be hoped that international law is shifting, through transnational legal process and the development of governance regimes, from the era of state ‘individualism’ to the era of the collective community of states. Most rules of past international law have been based on preserving the individual desires and interests of states. The international law of the future may, instead, focus on preserving the collective rights of the community of states, as co-stewards of the planet Earth.

For this to occur, a new system of international law, and international justice, must emerge and develop, slowly informing and transforming the current rudimentary rules and procedures. The norms which make up this system, it is hoped, will be based on an aspiration of freedom and equality for all. As Judge Charles D. Gonthier has proposed, there is a need to develop a sense of common responsibility for all members of our community, as symbolized in the third, often under-represented value of the famous French revolutionary cry: ‘liberté, égalité, fraternité’.¹⁸ A spirit of common responsibility for our increasingly interdependent societies and economies, for our shared environment and natural resources, and for the condition of humanity can inform the development of these norms. If the world can begin to move towards a more ‘sustainable justice’, such justice will be founded upon good faith recognition of a duty towards the present generation throughout the world, so that their needs can be equitably met, and also respect for the interests of future generations.

Sustainable development, as a concept, emerges from a global aspiration to meet these collective moral obligations and emerging international law realities.

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The 1987 Brundtland Report describes sustainable development as “development which meets the needs of the present without compromising the ability of future generations to meet their own needs.”¹⁹ The 1992 Rio Declaration states, in Principle 3, that the right to development must be fulfilled so as to equitably meet the development and environmental needs of present and future generations.²⁰ It identifies an imperative to meet the development needs of the present and future equitably, and to simultaneously meet environmental needs. Sustainable development provides a ‘conceptual bridge’ between the right to social and economic development, and the need to protect the environment. Accommodation, reconciliation and integration are emphasized.

While certainly inspiring, this global concept of sustainable development suffers from a certain degree of vagueness.²¹ This vagueness may well have been deliberate, in order to ensure its acceptability to many different local and global perspectives, from many cultures and regions.²² However, the lack of conceptual clarity, coupled with obstacles from many powerful economic interest groups, has made it quite difficult to implement sustainable development in international policy and especially in binding international law.

The time has come to seek greater clarity. In 1992 at the United Nations Conference on Environment and Development, heads of State 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.”²³

Over the past decade, scholars and practitioners from national and international agencies, courts and law faculties around the world have examined and sought to define the relationship between sustainable development and international law.²⁴ Clarity is now urgently needed. It is needed to help avoid or resolve bewildering conflicts and overlaps between economic, environmental and social treaties. It is also needed to ...