Legal Aspects of Sustainable Development - Coursework Example

TABLE OF CONTENTS Legal Aspects of Sustainable Development 2 Introduction 2 Sustainable Development 3 Principles of Sustainable Development 5 International Law Perspective of Sustainable Development 7 EC Perspective of Sustainable Development 10 The UK Perspective of Sustainable Development 12 Case Studies in Respect of Sustainable Development 14 Legislation in Respect of Sustainable Development 18 Conclusions 21 Bibliography 24 Legal Aspects of Sustainable Development Introduction Sustainable development is defined as a process of development that caters to present requirements; without jeopardising the opportunities of the future generations to meet their needs. The Brundtland Commission emphasised the necessity to fulfilling the requirements of the poor people, especially those who belonged to the less developed countries. Thus, in this Commission’s view equity was to be accorded the same importance as the environment1. The Brundtland Report, which established the concept of sustainable development, was the first report of the World Commission on Environment and Development that had been instituted by the UN. This Report identified the causes of environment deterioration, and established that the environment and economic development were interdependent, thereby effectively supplanting the earlier perceptions, in this context2. This Commission concluded that poverty was the main reason behind the majority of environmental problems. Poverty accelerates deforestation, which in turn, causes desertification. On the other hand, economic prosperity brings about positive outcomes, such as wealth and knowledge, which are instrumental in dealing with environmental problems. The Commission attempted to determine a system of development that would not damage the environment, as it was anticipated that such a development system would solve the problems posed by poverty3. The Brundtland Report proposed policy reforms in six areas that were affected by environmental problems. First, population and human resources; second, food security; third, the conservation system of species and ecosystem; fourth, energy sector; fifth, industries; and lastly urban migration and settlements. These areas had been seriously impacted by the trends in international economy. Moreover, the national and international organisations, and governments had failed to address the problems envisaged by these sectors4. This report disclosed the failure of the international organisations and the various governments, in dealing with environmental problems. The above areas, in which reform had been suggested, had been affected due to situation of the international economy. Sustainable Development The United Nations World Commission on Environment and Development (WCED) was the first to introduce the concept of sustainable development, via its 1987 Report. Conflicting environmental, social, and economic issues were addressed by the single domain of sustainable development. The 1992 United Nations Conference on Environment and Development (UNCED) required national governments to address the problems relating to the environment and poverty5. The Earth Summit of the UNCED, led to the publication of the Rio Declaration on Environment and Development, Agenda 21, the Statement of Forest Principles, the United Nations Framework Convention on Climate Change, and the United Nations Convention on Biological Diversity6. This conference, which was held in Rio de Janeiro in June 1992, was the largest environmental conference in history. There were more than 30,000 participants, including a hundred heads of states. In this conference, several international agreements, relating to climate change, forestry and biodiversity were ratified. The major agreements ratified at this conference were the Convention on Biological Diversity, the Framework Convention on Climate Change, Principles of Forest Management, the Rio Declaration on Environment and Development, and the Agenda 21. The Rio Summit served to establish the UN Commission on Sustainable Development7. The Rio conference dealt with the major initiatives, in the area of sustainable development. Principles of Sustainable Development In the 2002, New Delhi Declaration of Principles of International Law Relating to Sustainable Development, the following principles were enunciated. First, a duty of states, in order to guarantee sustainable natural resource development. Second, ensure equity and the elimination of poverty. Third, specification regarding the allocation of common but distinct responsibilities for the developing and developed nations. Fourth, the adoption of a precautionary approach to ecosystems, human health and natural resources. Fifth, ensure access and participation of the public, in respect of information and justice. Sixth, promote governance that is transparent and democratic. Finally, bring about the integration of goals related to economic development, human rights, society and the environment8. These principles adopt a holistic approach, which can therefore be implemented by the international community. In other words, these principles brought about the correspondence of economic development, human rights, society and the environment. The availability of crucial resources and forms of energy will determine the future of the world; and the very survival of mankind depends upon these factors. In addition, there are various issues that have an impact on the availability and use of these energy resources, and these issues will determine the future of the world. It is essential to effectively deal with these issues, for the sake of the future generations9. The sole means of achieving this desired objective is to provide a new source of energy that does not harm the environment. There is an urgent necessity for such new energy sources; because, the existing resources are being rapidly depleted, and they are finite. The judicious use of the existing energy resources can be achieved through global level negotiations between the nations. It is incumbent upon the governments of the world to enlighten their people about this problem. At present, the world relies to a major extent on fossil fuels; such as oil, coal and natural gas to fulfil its energy requirements10. The combustion of these fuels generates energy. However, due to the finite quantity of these fuels, they will be totally extinguished at some point of time. There is a major drawback associated with the consumption of fossil fuels and this is the emission of greenhouse gases into the atmosphere, which poses a serious threat to the environment. The consumption of fossil fuels results in the greenhouse effect, which contributes to global warming11. The consumption of fossil fuels pollutes the environment, due to the emission of green house gases, which can endanger life on earth. In the initial stages of searching for alternate sources of energy, it was felt that nuclear energy was a viable alternative. A vast amount of energy is released due to the controlled fission of a comparatively small amount of radioactive material, like Uranium and Plutonium, in a nuclear reactor12. Moreover, the cost of production of such nuclear energy is cheap and affordable for any nation. However, there is much that is problematic with nuclear energy. For instance, those who reside in the vicinity of nuclear power stations will be vulnerable to a number of health problems. Moreover, there will always be the danger of terrifying nuclear accidents, such as the Chernobyl accident, which claimed thousands of lives13. Consequently, nuclear energy jeopardises life and causes irreparable harm to the environment. In addition, there are several problems associated with the transportation of radioactive material, disposal of radioactive waste and effluents. These substances produce potent radiation, which is responsible for several dangerous diseases, like cancer. In addition, the leaking of radiation is a major problem for human health and the environment. Furthermore, the transportation and disposal of nuclear waste, poses a grave threat to the environment. Although the production of nuclear energy is inexpensive; the construction, operation and decommissioning of nuclear power stations, entail significant expenditure14. Consequently, it is not possible for each and every country to take recourse to nuclear energy for its energy requirements. Therefore, it would be in the fitness of things to develop cost effective technology, in the areas of solar, wind, geothermal and ocean wave energy. International Law Perspective of Sustainable Development The Division of Policy Development and Law of the United Nations Environmental Program had convened the Johannesburg meeting of jurists. It had also conducted several regional level judicial conventions and other meetings on the subject of environmental sustainability. Many of the participants at these conventions and meetings were prominent judges who were concerned and committed to protect the environment and who had strived hard to establish judicial networks on topics related to the environment15. Enforcement and compliance are factors that have generated considerable interest to these judicial networks. Consequently, this international judicial networking model constitutes an ideal for the proper implementation of environmental law and its enforcement. It very important to have similar networks of legislators, drafters of laws, writers and other interested activists at the national and sub-national levels16. This indicates the intricacy involved in promoting sustainable development, and the combined and sincere efforts of many stake holders is indispensable for achieving this objective. In June 1992, the EC and 155 nations had ratified the UN Framework Convention of Climate Change. It analysed a number of issues pertaining to the negotiating nations. However, none of the ratifying nations expressed total satisfaction with this Convention17. For instance, the oil producing countries headed by Saudi Arabia, were dissatisfied with the proposed obligations to be imposed upon them. Countries, whose economy is chiefly dependent on revenue from the sale of crude oil, will be severely affected, if there is a transition to renewable sources of energy. Researchers at Yale and Columbia Universities developed a new method of supervising the environmental sustainability of nations; namely, the Environmental Performance Index (EPI). It can be used to measure a nation’s environmental performance, in various areas, in order to determine the environmental performance of a country18. This method standardises the environmental performance of a country, by measuring various parameters of environmental performance. It considers the quality of air and water, the sustainability of biodiversity, and the natural resource management strategies adopted by the country in question. For instance, the use of EPI in China indicated differences in environmental performance, in various regions. This result suggested that there was a sustainability divide in China19. The performance metrics, chosen are those that can be changed by policy. The international treaties and agreements provide the performance targets to each country. Sometimes, the international organisations or national authorities specify the targets to be achieved by the nations. The performance targets can also be fixed on the basis of the opinion of experts. These targets are independent of any country. The EPI is similar to the United Nations, in the context of target setting20. Analysis of such performance assists in the identification of nations, whose performance is worthy of emulation. The other international standards include the Millennium Development Goals and the 2010 Biodiversity targets. The UN had adopted the indicators and targets from these methods. Among these, the EPI is widely used because it evaluates the ability of an individual country in protecting humans from environmental problems. It also determines the capability of a nation in protecting the environment from the harmful acts of humans21. These standards were established, in order to safeguard humanity from environmental hazards. EC Perspective of Sustainable Development In respect of the EC perspective on sustainable development, Article 2 EC Treaty contains the relevant provisions. At Gothenburg summit, which was conducted in June 2001, the European Council had drafted methods and strategies to achieve sustainable development. In addition, the policy of health protection is inherent in all economic, social and environmental policies of the EC; and Article 6 of the Amsterdam Treaty requires the merger of environmental policies, in order to ensure health protection22. The European Union is committed to environmental protection, and it achieves this via its treaties and policies The Concept of "Integration" The EC incorporates a number of sectoral policies, in different areas. These are separately dealt with by the designated agency. However, these policies exert influence over other sectors. Thus, the different sectors are linked by these policies. All the same relationship results in some disadvantages, in certain policy areas. In order to address this problem, the 1997 Amsterdam revision of the EC Treaty established a specific article, in the area of environmental policy integration23. Article 6 of the EC Treaty requires the implementation of Community policies and activities, as specified in Article 3. It also requires the EC to integrate various pieces of legislation and requirements with regard to environmental protection, into one composite whole. In order to realise this objective, the EC initiated the Cardiff process; which separately analyses the activities and efforts of several sectors24. The underlying objective of Article 6 is to promote sustainable development, by proper implementation. These sectors will have to report on the efforts made by them, in relation to the integration of various environmental requirements, in their policies. As such, the environment ministry or directorate alone is not responsible for the protection of the environment, and all the sectors have been deemed to be jointly responsible for environmental performance25. By means of such integration, accountability of all the involved parties will be increased. Therefore, the EC integration process, will be beneficial for strengthening sustainable development. The UK Perspective of Sustainable Development The UK has adopted sustainable development as the mainstay of its environmental policy. Accordingly, a number of governmental departments, non departmental public bodies, and the Environment Agency are required to promote sustainable development, while carrying out their functions. Moreover, a consultation, calling for the observations on measures of sustainability, resource management, transport, tourism, research and education, was issued by the Department of the Environment, Transport and the Regions26. The UK has adopted many policies to promote and maintain sustainable development. The manufacturing industry and professional bodies have recognised the concept of sustainable development. From their public posturing, it appears that the atmosphere is conducive for bringing about substantial change to the present situation. However, such confidence is ill advised; because of the absence of proper organisation to address the difficulties involved in engendering sustainable development27. Moreover, the events of the recent past make it amply clear that the capacity to solve these problems is clearly wanting. In the 1970s and 1980s, tremendous panic was generated out of the fear that fossil fuel reserves were about to be exhausted. The result was a search for new locations of petroleum reserves. In respect of fusion energy, solar energy and wind energy, mankind has failed to develop cost effective technologies. Over a period of time, it has become obvious that decades if not centuries of research and development would be required to develop cost effective systems. There is no government that would support such protracted work. Furthermore, this increase in the time required to develop economical solutions is accompanied by a decrease in the time available for implementing such solutions28. This reduction in the available time is the consequence of an ever increasing population and improving standard of living. The ever increasing population tends to stretch the available resources, which are limited in nature. Legislation pertaining to asbestos was made more stringent, and as a consequence, the Health and Safety Executive came out with two novel Approved Codes of Practice. In the process, two substitutes for the existing guidance publications were published. The government enacted new laws on 1 February 1999, in order to concentrate and tighten the 1983 Asbestos Licensing Regulations and the 1987 Control of Asbestos at Work Regulations. Subsequently, on 9 February 1999, the Health and Safety Executive published the Work with Asbestos Insulation, Asbestos Coating and Asbestos Insulating Board, and The Control of Asbestos at Work, in order to enable and assist employers to comprehend their responsibilities29. It has proved very difficult to create sustainable solutions, because of the fact that the funding for such work is chiefly derived from organisations that have everything to gain, by maintaining the status quo, or if a modicum of change, in this regard. In addition, the economic model adopted by the industry, promotes unsustainable behaviour30. Obviously, the extant economic systems support and reward unsustainable activity; therefore, it would be illogical to expect this arrangement to engender procedures that would result in its annihilation. An instance of this is provided by the professional institutions that make a plethora of statements in support of sustainability. However, the reality is otherwise, because these institutions refrain from censuring a member with a manufacturing plant that was not sufficiently energy efficient or was involved in the manufacture of products that were unsustainable. The chief source of funds for these institutions is the industry, and there is considerable reluctance, if not outright opposition to promoting sustainable development, on account of the significant additional cost involved. As a result, implementation of these measures is unsatisfactory. Case Studies in Respect of Sustainable Development The following cases disclose the attitude of the courts towards sustainable development issues. The Gabcikovo case dealt with a dam project that was to extend from Bratislava to Budapest over the Danube. This project on completion would have provided a vast amount of hydro electric power, which by its very nature of generation, does not harm the atmosphere. A treaty had been arrived at, in this regard between Hungary and Slovakia (which was at that time part of the erstwhile Czechoslovakia), in 1977. However, in 1989, Hungary came to a unilateral decision, whereby it discontinued work on this project, by citing some unspecified ecological factors. The ICJ ruled in 1997 that Hungary had to complete the project31. Since, this ruling is unenforceable, Hungary has chosen to ignore this ruling, and has failed to commence work on this project. The decision of the International Court of Justice in Gabcikovo – Nagymaros Project was an important decision, Vis – a – Vis the concept of sustainable development. The Court recognised sustainable development as an important factor of contemporary relevance. Justice VP Weeramantry opined that this importance stemmed from sustainable development’s erga omnes character32. The ICJ stressed that sustainable development was a newly developed standard of environmental law that had great significance for the implementation of the Treaty. Thereafter, the court described sustainable development as the need to arrive at a balance between economic development and environmental protection. The parties to the dispute, Hungary and Slovakia were desirous that this concept would be subjected to a detailed analysis; but the court did not concur33. The ICJ’s decision was not chiefly based on international environmental or international watercourses laws. However, the discussions made copious reference to these laws, thereby providing a number of important clarifications, in this area of international law. As such, the Gabcikovo case was the first case at the international level to deal with substantive water law issues; and it established several new concepts relating to reasonable and equitable use34. These concepts have evolved into legal principles that govern the use of watercourses. The Gabcikovo case demonstrated the development of new standards in the area of international environmental law. It promoted the legal principles and standards in this genre of environmental laws. Unfortunately, the Court refused to deal with scientific data as evidence; which was cause for concern, because disputes in this area are primarily based on competing scientific claims35. Despite, being a momentous decision, in respect of sustainable development, it could not be implemented, due to the intransigence of Hungary and the unenforceable nature of the ICJ’s decision. This decision clearly depicts the difficulty in enforcing measures related to sustainable development. In Canada Ltee v Hudson, the Supreme Court of Canada ruled that the precautionary principle could be considered a principle of customary international law36. It has been noticed in several instances that domestic legislation proves inadequate, in issues relating to international environmental law that entail trans boundary or transnational effects. This was evident in Chernobyl, Sandoz and the Lingen nuclear power plant cases. The ruling in these cases, made it clear that in trans boundary or transnational pollution, individual victims could not achieve any degree of success against a foreign polluter state. This contention holds good, in respect of most of the European countries, as was demonstrated by the decision in the cases relating to the salination of the Rhine, the Swiss and Austrian decisions in Chernobyl, the decision in Cattenom and the Soboth hydroelectric power plant37. In all these cases, the decisions proved to be unsupportive of the policies related to sustainable development. However, the Supreme Court of Philippines made a departure from this practice and ordered a halt to the deforestation of its national tropical rainforests, in the Opasa case of 1993. It was opined by this learned court that the rainforest constituted and vital natural resource that was essential for the existing and future generations38. This ruling was an exception, and it favoured sustainable development in the Philippines. The occasions on which individuals have proved successful in engendering policies that seek to mitigate harm to the environment, on the basis of the precautionary principle, are negligible. In one case, the High court scrutinised whether the Secretary of State was required by Article 130R of the EC Treaty to implement the precautionary principle under the British Electricity Act. In its considered opinion, there was no such obligation upon the Secretary of State to take national action, in conformity with this act39. To surmise, the court ruled that the precautionary principle could not compel the Secretary of State to initiate such measures. This is an unwelcome decision, which could prove detrimental to accountability related to sustainable development. In Cambridge Water Co v Eastern Counties Leather plc the House of Lords held that the Eastern Counties Leather plc was not liable for any water contamination. The principle issue considered by them was whether the foreseeability of the damage undergone by Cambridge Water Co was eligible for a claim under the principle established in Reynalds v Fletcher40. Their Lordships’ ruling was not in favour of environmental protection, in this case. Legislation in Respect of Sustainable Development The Environmental Protection Act 1990 introduces the notion of integrated pollution control, which aims to prevent pollution from emission to air, land or water. An important outcome of this Act is that any entity whose operations can be categorised under the waste stream, have to obtain a licence for their operations. Some instances of these licences are the Waste Carriers Licence and Waste Management Licence41. Furthermore, the Environmental Protection Act 1990 imposes a duty of care upon any entity that is engaged in the management of waste. These bodies have to review, endorse and utilise only the entities that uphold this duty of care. This Act does not permit evasion of responsibility, in respect of the disposal of waste, by the transfer of ownership to a third party. In this manner, this Act enhances the accountability of stake holders in waste disposal. The Canadian Environmental Protection Act (CEPA) 1999, states that its primary objective is to promote sustainable development through the prevention of pollution; and it includes the precautionary principle. In 1983, the United Nations commissioned the Brundtland Commission to address the challenge posed by the deterioration of the environment and natural resources. The objective of this Commission was to identify the consequences of the deterioration of environment on economic and social development, at the global level42. The emergence of this commission constitutes an important event in the progress of sustainable development. Several countries in Africa and Latin American regions had sustained these problems to a major extent. The governments of these nations were unable to surmount the problems posed by the international economy. The people of those nations experienced diminishing income per capita, and were exposed to deteriorating economic and environmental conditions43. Sustainable development entails the recognition of new priorities, and institutional and legal reforms. The Bruntland Commission, per se, served to identify three factors that were to be balanced, if sustainable development was to be ensured. These are the people, planet and profit. Consequently, considerations of economic prosperity should never compromise the interests of the people44. It is extremely inequitable to compromise environmental safety for the sake of monetary benefit. In the Rio and Stockholm summits, it was conceded that environmental protection was compatible with development. There is a degree of qualitative difference between the Rio Declaration and the Stockholm Declaration. For instance, the UNCED was acclaimed as a paradigm shift from international environmental law to an international law of sustainable development, which indicated a novel ecological order45. The 2002 Johannesburg conference, the World Summit on Sustainable Development, was anticipated to effect the implementation of the goals that had been agreed upon, in the Rio summit. This entailed the adoption of several tangible measures, such as instruments to address poverty and environmental deterioration. However, nothing positive emerged, even after two years of acrimonious negotiations46. Implementation of the policies related to sustainable development has proved to be unsuccessful, due to the involvement of various vested interests. Conclusions Sustainable development is an important concept for the wellbeing of humans and their environment. The strategies for achieving it improve the quality of human life and maintain harmony between nature and humans. Sustainable development requires the fulfilment of certain conditions, and these are set out in the sequel. Citizens should be permitted to participate in the decision-making process. The political system should allow such participation, and changes should be effected that will facilitate the active participation of the citizens47. Since, the sustainable development concept involves many issues and interests, the community should participate to a greater extent, in order to improve its success. The economic system must be sound enough to generate prosperity, based on technical knowledge. Moreover, the economic system should be self-reliant. The social system must be capable of resolving its internal tensions and the production system must have concern for environmental protection48. In addition, it should accept its obligation to protect the environment and promote the development of a safe environment. Any economic system, should strive to promote and strengthen sustainable development. Technology must always strive to arrive at new solutions and discover alternate resources for the development of the economy and protection of the environment. The administrative system must have sufficient flexibility to change itself to conform to these developments and concerns49. The international system must respect the environment and human wellbeing, and its trade and financial practices should be along these lines. Sustainable development is a utopian concept that could be difficult to realise in practice. The strategies of sustainable development entail targets and limitations, on the employment of natural resources, in the production of energy. These strategies insist upon the use of alternate and renewable energy sources. Moreover, the strategies of sustainable development are seized with non-renewable, irreparable resources such as the ozone layer, fossil fuel resources, topsoil, and wetland habitats. As such, the notion of non-renewability gives priority to the preservation of natural resources; and it opposes development related to the protection of the biodiversity and ecosystem50. There should be a centralised authority to impose restrictions on the use of natural resources and penalise offenders who exploit natural resources. Such authority must restrict market transactions, if the parties had utilised natural resources in their production51. The Rio Declaration adopted this approach, which is human – centred and primarily focused on development. This approach would be absent of any voluntary conduct by the participants. In addition, there would be mistrust among the authorities and stakeholders. This hinders the process of globalisation and develops new trends, like trade protectionism. The second approach deals with the interaction of resources with human beings and society52. The fundamental objective of this approach is to ensure a balance between social, economic and ecological goals; and it involves several aspects, like health, literacy, religious freedoms and political aspirations. It can be surmised that despite the presence of a large body of legislation and a large number of global policies relating to sustainable development; considerations relating to politics, economics and territory have adversely impacted its implementation. This is borne out by the declaration made at the end of the recent environmental conference at Copenhagen, where serious differences surfaced, when attempts were made to reduce the carbon emissions of the participating nations. Sustainable development can be achieved only through coordination, commitment and cooperation amongst all the stakeholders, related to this problem, at the global level. 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