What is sustainable development and how has it been addressed in international law and practice in the context of climate regime?

By Mónica María Soler*

“There is a link drawn between environmental preservation and human rights. Thus, the right of states to use and exploit their own resources is subject to some limits imposed by the prohibition to cause environmental damage. However, we see that they do not necessarily have a wider view of how this exploitation can have a larger indirect impact on other states”

Introduction

Sustainable development is a concept that has been put into the global agenda and has gained visibility in recent decades. The international community is summoned to give effective responses to the challenges of reconciling economic growth with environmental and social wellbeing. On the other hand, there is a whole regime designed to respond to the climate crisis, which addresses the essential problems of contemporary societies in terms of the protection of the environment and the rational use of natural resources. That is why there is an undeniable relationship between sustainable development goals and the climate regime, concepts that have been both tackled by international law.

To answer these questions and make a successful assessment of one of the main concerns in international environmental law, I will start defining the concept of sustainable development, its scope, and content. Secondly, I will examine how it has been addressed in international law and how it has been examined in some cases brought to the International Court of Justice. Finally, I will review the relationship between sustainable development and the climate framework and draft some conclusions about the role of international law in relation to this ambitious goal.

1. Sustainable development

The origin of the concept of sustainable development cannot be dated with exact precision.[1] While some argue that it can be traced back to ancient times across civilizations,[2] others suggest that the close-knit relationship between environmental protection and economic development arose in the 18th and 19th centuries.[3]

Despite those differences, it can be said that the current understanding of sustainable development, as a common goal of humanity that has gradually become a matter of concern for international law, emerged since the late 1980s.[4]

This approach to the concept of sustainable development was formally introduced to the international community in 1987 with the Report of the World Commission on Environment and Development: Our Common Future, also known as the Brundtland Report.[5] According to this work, sustainable development is a need and even a duty of humanity to promote and foster economic growth in a way that meets the needs of the present without compromising the ability of future generations to meet their own needs”.[6]

With its report, the World Commission on Environment summoned for a global action to strike a balance among the economic growth, the ecological order, and people’s future needs.[7] Nonetheless, factors such as the growing awareness of environmental issues, depletion of natural resources, and poverty have previously contributed to the reformulation of the concept of development. In fact, documents such as the Stockholm Declaration of 1972 and the 1980 World Conservation Strategy were key elements for redefining development and setting its environmental scope.[8]

Therefore, by the time the World Commission on Environment issued its report, sustainable development had already gained popularity among international efforts dealing with environmental matters.[9] Some argue that the essential elements of sustainable development are based upon two principles of equity: intergenerational and intragenerational. The first one, concerning the reconciliation and balance of the needs of present and future generations, and the second, the fair distribution of the outcome of the economic growth within a society.[10]

Therefore, the integration of environmental protection and economic and social development, as key elements of sustainable development, involves a vast range of legal standards, principles, and rules, deeply interconnected to its realization.[11]

2. Relationship between international law and sustainable development

International treaty-law and non-binding documents have been increasingly incorporating references to sustainable development in specific contexts, issues, or sectors. These agreements shed light on the definition of this concept, its purposes, objectives, and legal status.[12]

Some of the international instruments and institutions of international law that have directly addressed the sustainable development are the Millennium Development Goals, the Rio Conference of 1992 that gave birth to the Rio Declaration and the three Rio Conventions, the Johannesburg Conference, the Rio +20 conference and, the Sustainable Development Goals (SDGs).

The Rio Declaration adopted by the United Nations Conference on Environment and Development in 1992, although non-binding, sets out a series of principles that guide the action of States in achieving economic and social development objectives while protecting the environment, through sustainable means.[13]  

According to this instrument, human beings have a right to a healthy and productive life that is respectful of the environment,[14] while states are entitled “to exploit their own natural 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.”[15] (emphasis added)

From these assertions, we may conclude that there is a link drawn between environmental preservation and human rights. Thus, the right of states to use and exploit their own resources is subject to some limits imposed by the prohibition to cause environmental damage. However, we see that they do not necessarily have a wider view of how this exploitation can have a larger indirect impact on other states.

At this point, it is also important to note that the climate regime, expressly refers to sustainable development. The UN Framework Convention on Climate Change (hereinafter UNFCC) on its Article 3.4. enshrines the right and the obligation of the member states to promote sustainable development”.[16] This interlinkage with the climate regime could also be seen as an universal commitment to sustainable development. Nonetheless, this matter will be the subject of further analysis in the following section.

More recently, the Sustainable Development Goals adopted in 2015, provided an opportunity to determine the legal extent of the concept of sustainable development. This process, led by the United Nations members with the participation of civil society, was intended to promote sustainable development in the economic, social, and ecological spheres.[17]

Even though the 17 SDGs and 169 targets of the 2030 agenda provide political inter-governmental commitments, not legal rules, they were formulated in accordance with the existing international rights and obligations of States under international law.[18] Some of the instruments specifically mentioned in this initiative are the United Nations Charter, the Human Rights Declaration and the Rio Declaration on Environment and Development.

Considering that the SDGs targets are deeply related to existing international agreements, it has been said that international law provides the framework in which the SDGs should operate. Also, some see in this goal-setting initiative an effective tool to articulate and integrate international obligations and institutions.[19]

The SDGs have not escaped from criticism acknowledging that, the non-hierarchical goals and targets of the 2030 Agenda guide the action of States, but lack a unified system to determine priorities among them and the way in which they must be achieved. In other words, even in an ideal world, where all goals are met individually, there would still be differences in the expected outcome and the level of sustainable development of every state.[20]

Legal practice of sustainable development

Although the legal status of sustainable development remains a subject of debate, this notion has influenced judicial decisions of international courts and is increasingly understood as a general principle of international law.

The International Court of Justice, in the Gabcikovo-Nagymaros case, dealt, for the first time, with a conflict between economic development and environmental protection.[21]While addressing the differences between Hungary and Slovakia in the operation of a power plant, the Court stated that sustainable development should be understood as the “need to reconcile economic development with protection of the environment”.[22] In practice, the Court attributed to the concept a normative force that may be indicative of its status as a principle, and that applied in that case meant concrete obligations of the parties to mitigate the environmental impact on the Danube river.[23]

In the Pulp Mills case, a dispute between Argentina and Uruguay related to the construction of a pulp mill on the River Uruguay, the court held that the essence of sustainable development is the “balance between economic development and environmental protection”,[24] which in the specific case, meant a balance between the use of the waters and the protection of the river. Although the Court did not treat sustainable development as a principle of law, it recognized it as an integrative concept endorsed by the world community.[25]

The Permanent Court of Arbitration, in the Iron Rhine arbitration, assessed a dispute concerning a railway linking Belgium and Netherlands, and made a reference to Rio Principle 4,[26] which expressly integrates the goals of environmental protection and economic development. In its decision, the Permanent Court recognized the obligation to strike a balance between both objectives as a principle of general international law.[27]

From this review, it is possible to conclude that regardless of the legal status of sustainable development, it has practical legal consequences. In fact, it has been invoked by international tribunals as an independent and universal principle, to interpret and apply international obligations of states.[28]

3. The relationship between sustainable development and climate regime

As anticipated before, there is an intrinsic relationship between sustainable development and the climate regime. Proof of this are instruments such as the UNFCCC and the Paris Agreement, which regulate global action on climate crisis and invoked the concept of sustainable development.

The UNFCCC, a UN treaty of binding nature, has the main purpose of achieving “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”.[29] This agreement recognizes sustainable development as a right and obligation of all States[30] and also enshrines a principle of cooperation between States as a premise for addressing the problem of climate change.[31]

Later, the Kyoto Protocol, adopted in 2005, established targets and timetables regarding greenhouse gas concentrations for the States members to the UNFCCC, and a sophisticated system to review their effective implementation and compliance, that would later be re-evaluated in the Paris Agreement.

Furthermore, the Paris Agreement, whose purpose is to promote the UNFCCC and strengthen the global response to the threat of climate change, recognizes that these efforts should be carried out within the framework of sustainable development and the fight against poverty.[32] Perhaps, one of the most relevant aspects of this agreement is the introduction of a long-term goal to mitigate the effects of climate change, focusing on the impact that the now globalized world economies are having on the environment, by the adoption of an innovative system of global governance to review compliance of the parties’ commitments.[33]

Likewise, the Conference of States of the UFCCC, during the adoption of the Paris Agreement, recognized the importance of the SDGs, with a special mention to Goal 13 on “Climate Action”. However, questions have been raised about the role of this Goal under the global climate change regime, and the proper management of all the environmental goals and targets.

Problematic questions about the prioritization of environmental objectives will have to be solved to avoid conflicts among common interests of humanity. For example, certain climate measures (SDG 13), such as ocean fertilizers and CO2, also cause potential harm to the biodiversity of marine ecosystems (SDG 14).[34]

Although the solution to climate change is an issue that exceeds sustainable development, this concept will be decisive in designing and implementing global actions that satisfactorily address this problem. Therefore, measures on climate crisis cannot be independent of sustainable development, just as sustainable development cannot be achieved without addressing climate change.

4. Conclusions

After a review of the evolution of the concept of sustainable development, it is possible to see how over the pass of time it has become increasingly relevant on a global level and conceived as an objective of the international community. As seen in the Brundtland Report in 1987, the concept of sustainable development consists of the integration of three dimensions of development, namely: environmental, economic, and social.

Some describe the essential components of sustainable development as deeply related to intergenerational and intragenerational equity. The first one, concerning the balance between the needs of present and future generations (environmental protection), and the second, the distribution of the outcome of development within a society (social and economic development).[35]

In light of this definition, international courts and tribunals have resorted to the concept of sustainable development to interpret and determine the scope of the obligations of states under international law. Thus, despite the lack of consensus on the legal status of this concept, its essential elements remain independent of the situation to which they are attempted to be applied.

Although there is a global acceptance of the basic definition of sustainable development, this definition says very little about the way in which goals and targets on sustainability must be managed at a national and aggregate level. That is the case of the SDGs, that build up a global initiative of striking a balance between demands on economic growth and environmental protection, but does not provide any guidance for states to solve conflicts among those goals, some of which at their very essence are likely to compete.

This is problematic because even if a committed world gets to fulfill the goals and targets of the 2030 Agenda, there would be differences in the approaches and understanding of what a sustainable developed society truly is. Also, the interrelationship between climate regime and sustainable development illustrates some of the difficulties that arise while defining appropriate solutions to such systemic problems.

On the other hand, climate change cannot be limited to an environmental or economic growth matter. Thus, good responses may come from the achievements and challenges of sustainable social, economic, and environmental development. Climate change made visible existing problems of contemporary societies in different aspects, as the indiscriminate use of natural resources or the distribution of wealth. Therefore, tackling these matters requires achieving sustainable development and vice versa.

Many issues remain unsolved, but the time to conciliate the needs of societies and environmental protection is running out. Therefore, after all these years in which sustainable development has been into the global agenda, States must translate their pledges and commitments into effective actions.

*Mónica María Soler is pursuing a Master’s degree in International Law at the University of La Sabana. She is lawyer from the Pontificia Javeriana University, Bogotá and she was member of the Pontificia Javeriana University Team in the Ibero-American contest “Francisco Suárez S.J.” (2013) and in the Inter-American Human Rights contest (2014).


Notes:

[1]Voigt C, Sustainable Development as a Principle of International Law: Resolving conflicts Between Climate Measures and WTO Law (Martinus Nijhoff 2009). Pag. 11.

[2] Voigt C, Sustainable Development as a Principle of International Law: Resolving conflicts Between Climate Measures and WTO Law. Pag. 11.

[3] Barral V ‘Sustainable Development in International Law: Nature and Operation of an Evolutive Legal Norm’ (2012) 23 European Journal of International Law 377. Pag. 379.

[4] Kim RE, ‘The Nexus between International Law and the Sustainable Development Goals’ (2016) 25 Review of European, Comparative & International Environmental Law 15. Pag. 16.

[5] The report receives its name for Gro Harlem Brundtland, a Norwegian politician who chaired the Brundtland Commission which presented the Brundtland Report on sustainable development.

[6] Brundtland Commission. Report of the World Commission on Environment and Development: Our Common Future. March 1987. Para. 27

[7] Brundtland Commission. Report of the World Commission on Environment and Development: Our Common Future. Para. 28-30.

[8] Voigt C, Sustainable Development as a Principle of International Law: Resolving conflicts Between Climate Measures and WTO Law. Pág.11

[9] Voigt C. Pag. 12.

[10] Barral V ‘Sustainable Development in International Law: Nature and Operation of an Evolutive Legal Norm’ (2012) 23 European Journal of International Law 377.Pag. 381 y 382.

[11] Barral V ‘Sustainable Development in International Law: Nature and Operation of an Evolutive Legal Norm’ (2012) 23 European Journal of International Law 377.Pag. 381 y 382.

[12] Voigt C. Pag. 19.

[13] Rio Declaration on Environment and Development. Adopted by the United Nations Conference on Environment and Development (Rio de Janeiro 1992).

[14] Principle 1. Rio Declaration on Environment and Development.

[15] Principle 2. Rio Declaration on Environment and Development.

[16] UNFCCC. Art. 3.4. “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”.

[17] Kim RE, ‘The Nexus between International Law and the Sustainable Development Goals’ (2016) 25 Review of European, Comparative & International Environmental Law 15. Pag. 15

[18] Kim RE, ‘The Nexus between International Law and the Sustainable Development Goals’ (2016) 25 Review of European, Comparative & International Environmental Law 15. Pag. 16.

[19] Ibidem. Pag. 17.

[20] Ibidem.

[21] ICJ, Gabcikovo-Nagymaros Dam Case (1997), Reports.

[22] ICJ, Gabcikovo-Nagymaros Dam Case (1997), Reports. Para. 140.

[23] ICJ, Gabcikovo-Nagymaros Dam Case. Para. 140.

[24] ICJ, Pulp Mills Case (2010) Reports. Para. 177.

[25] Ibidem.

[26] Rio Principle 4. “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.”

[27] Permanent Court of Arbitration, (‘Iron Rhine Arbitration) Arbitration Regarding the Iron Rhine Railway between the Kingdom of Belgium and the Kingdom of the Netherlands, Award, 24 May 2005. Para. 67.

[28] Kim RE, ‘The Nexus between International Law and the Sustainable Development Goals’ (2016) 25

Review of European, Comparative & International Environmental Law 15. Pag. 21.

[29] Art. 2 UNFCCC.

[30] Art. 3.4. UNFCCC. “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”

[31] Art. 3.5. UNFCCC “The 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.”

[32] Paris Agreement. Art. 2.1. “This Agreement, in enhancing the implementation of the Convention, including its objective, aims to strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty, including by (…).”

[33] Savaresi A, ‘The Paris Agreement: Reflections on an International Law Odyssey’ in George Ulrich and Ineta Ziemele (eds), How International Law Works in Times of Crisis (Oxford University Press 2019). Pag. 9-12.

[34] Kim RE, ‘The Nexus between International Law and the Sustainable Development Goals’ (2016) 25 Review of European, Comparative & International Environmental Law 15. Pag. 23-24.

[35] Barral V ‘Sustainable Development in International Law: Nature and Operation of an Evolutive Legal Norm’ (2012) 23 European Journal of International Law 377.Pag. 381 y 382.

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