LUND UNIVERSITY
Faculty of Law
Environmental Law in an International Context
JUCN21
Is there sufficient regulation for
sustainable development at an
international and national level?
Name: WRIGHT, Maeve
Personal Code: 940330P329
Email address: maeve.wright.710@student.lu.se
Table of Contents
1. Introduction
2
1.1 Background
2
1.2 Purpose, research question and delimitation
2
1.3 Method and outline
3
2. The Concept of Sustainable Development
4
2.1 Sustainable development as a branch of law
5
3. Current International Provision for Sustainable Development
6
4. Sustainable Development at a National Level
10
5. The influence of the European Union
13
6. Analysis and conclusion
15
Bibliography
17
Page 1 of 18
1. Introduction
1.1 Background
The concept of sustainable development has arisen through the acknowledgement of the
need to balance economic growth with environmental protection. Since the 1970’s there
have been a number of global conventions in which sustainable development has been of
primary focus, and importantly there has been acknowledgement of the necessity of
international cooperation in this area.
However, there is a lack of clarity surrounding the concept and how it should be regulated
at both international and national level. The nature of sustainable development combines
international economic, environmental and social law and there is no single overarching
framework for sustainable development. Rather, it is regulated through a combination of
legal instruments, norms and treaties.
1.2. General purpose, Research Questions and Delimitations
This essay will analyse the regulation of sustainable development. The aim of this essay will
be to determine whether or not current international instruments provide sufficient
provision for sustainable development, and how the principles are implemented at a
national level in the United Kingdom.
Sustainable development for the purpose of this essay is defined as a concept rather than a
principle due to the lack of official recognition as a legal principle in itself. However, due to
the restraints of this essay there will be limited discussion of this, with focus instead on
development of regulation in the area of sustainable development.
Furthermore, the scope of this essay will not allow for detailed examination of all regulation
that is in place. Instead, a brief summary of the main declarations that have arisen as a
Page 2 of 18
result of global conventions will be discussed, with detailed analysis of the New Delhi
Declaration1.
When analysing the regulation of sustainable development from a national perspective the
United Kingdom has been chosen as the country of focus. The UK is also a member of the
European Union, and the role that the EU plays in ensuring the adoption of sustainable
development by member states will be discussed.
1.3 Method and Outline
Firstly, the emergence of the concept of sustainable development will briefly be considered,
and subsequently whether it has become an accepted principle of international law, or
whether it is an emerging customary norm in its own right will be looked at. The fact that
sustainable development concerns different policy areas, and the way it is more often
governed through soft law will also be mentioned.
Following from this, an outline of the history of global conventions and resulting
declarations relating to sustainable development will be given, specifically the Rio
Declaration 1992, the Stockholm Conference 1972, the New Delhi Declaration 2000, and the
Johannesburg Declaration 2002.
There will then be an analysis of how the concept of sustainable development has been
incorporated at a national level in the United Kingdom. This will include discussion of the
problems that have been encountered, the influence of the European Union, and what the
future may hold.
In achieving the purpose of this essay a legal dogmatic approach will be taken. The main
sources used in this essay will be the reports and declarations released as a result of
international conferences, including official documents from the EU and United Nations.
1
ILA New Delhi Declaration of Principles of International Law Relating to Sustainable Development,
International Environmental Agreements 2002, Volume 2, Issue 2, pp 209-216
Page 3 of 18
When discussing national regulation, official documents and press releases from the UK
Government as well as UK legislation will also be used.
This essay will aim to conclude whether or not the regulatory provision relating to
sustainable development is sufficient, and what must be done in the future to ensure the
balance between economic growth and environmental protection.
1. The concept of sustainable development
The concept of sustainable development has emerged through acknowledgement of the
connection between the economy, development and the environment. The effect of
continued economic growth on the environment and the depletion of natural resources
must be acknowledged and controlled. The two are dependent on each other and economic
growth cannot continue without protection of the environment.
The exact definition of the term sustainable development is a matter for debate. However,
for the purposes of this essay the widely accepted explanation of the concept formed by the
World Commission on Environment and Development in what is known as the Brundtland
Report will be used. This states that “Sustainable development is development that meets
the needs of the present without compromising the ability of future generations to meet
their own needs”2. The report goes on to establish two important concepts within
sustainable development. Firstly, focus is put on 'needs', with priority being given to those
things essential for human life such as food, water, shelter and clothing. The second
principle highlighted is environmental limitation, and acknowledgement of the fact that
resources are limited and must be used sensibly. The report established a need for policies
and regulation to ensure the most efficient and sustainable use of resources.
The main aim of development is to fulfil human want and needs. However, in order to
achieve this in a fair and just way account must be taken of all people, and there must be
2
Chapter 2, Brundtland G et al (1987) Our Common Future: Report of the 1987 World Commission on
Environment and Development, Oxford, Oxford University Press
Page 4 of 18
balance between those in developing countries and those in developed countries.
Depending on their backgrounds people have different ideas of what they need in life. Basic
human needs, such as food, water, shelter and clothing may be the focus of those in
developing countries. In contrast, others take these things for granted and instead may
aspire to a higher standard of living. There must be limitations in allowing development
beyond these basic needs. Increased economic growth and expansion in the use of
resources in developed countries must be weighed against the need to ensure all people
have an adequate standard of living. The most efficient way to ensure this is to take an
international approach and have a unified system for the regulation of sustainable
development. However, although international policies exist, the contrast and differences in
economic growth in developed and developing countries makes for differing approaches in
the implementation of sustainable development regulations at a national level. Therefore
global unanimity is in practice hard to achieve.
2. Sustainable Development as branch of Law
Gradually, sustainable development has been accepted in international law through the
amalgamation of economic growth, social justice (including human rights) and
environmental protection objectives3, to allow for the improvement in the overall quality of
life for all generations.
Arguably ‘sustainable development law’ has come to be accepted as a branch of
international law which encompasses a variety of principles and instruments which combine
economic, social and environmental law with the aim of allowing for continued
development. The majority of specific regulation of the concept is increasingly found in
international treaties specifically provide sustainable development goals, and in turn the
concept has begun to be recognised globally at a national level in courts and tribunals.
Although sustainable development is mainly dealt with through ‘soft law’, in declarations
and international statements, these instruments carry an increasingly persuasive force and
3
http://www.cisdl.org/research-publications-events.html
Page 5 of 18
they help to clarify the application of sustainable development and coordinate law and
policy.
At a national level, law and regulation is an extremely important part of sustainable
development. Society is structured in a way whereby individual actions are restricted and
influenced by the rule of law. Through means of enforcement laws and regulations are
followed and this structure of governance is key to the success of sustainable development.
3. Current International Provision for Sustainable Development
The concept of sustainable development within international law has emerged through
recognition of the importance of being aware of how the action of one state may affect
another, particularly in relation to potential damage to the environment. The
acknowledgement of the cross boarder effects that environmental damage can have has led
to a more unified approach in dealing with environmental issues.
Subsequently, there have been a number of global environmental conferences. The ‘United
Nations Conference on the Human Environment’ held in Stockholm in 1972 being the first of
such meetings. This was the first major discussion at a global level which established links
between environmental degradation and protection, alongside economic and social
development of all countries, and marked the evolution of the concept of sustainable
development.
The United Nations (UN) ‘World Commission on Environment and Development’ report
entitled ‘Our Common Future’, more commonly known as the Brundtland Report, arose a
number of years later. This was the first official mention and inclusion of the term
‘sustainable development’ in global policy, and established a widely recognised definition of
the concept.4
4
See Chapter 1
Page 6 of 18
This was followed by the ‘United Nations Conference on Environment and Development’
held in Rio in 1992. 172 states were in attendance alongside multiple corporations and
intergovernmental and non-governmental organisations5. The conference led to the
establishment of what is known as the ‘Rio Declaration’ and Agenda 21. The Rio Declaration
builds upon the Stockholm Declaration, and aims to coordinate the relationship between
developed and developing countries. However, the declarations use of the term sustainable
development is still somewhat ambiguous and it provided more general guidelines than a
solid legal framework. This can be seen in Principle 27 of the Declaration which establishes
the aim that: “States and people shall cooperate in good faith and in a spirit of partnership in
the fulfilment of the principles embodied in the Declaration and in the further development
of international law in the field of sustainable development”.6 It should also be noted that
this principle assumes that sustainable development is already in existence within
international law.
Furthermore, Principle 16 of the Rio Declaration emphasises that “national authorities
should endeavour to promote the internalization of environmental costs and the use of
economic instruments, taking into account the approach that the polluter should, in
principle, bear the cost of pollution, with due regard to the public interest and without
distorting international trade and investment”.7
Agenda 218 also arose from the Rio Conference. It establishes a global partnership for
sustainable development and emphasises participation at an international level. However,
Agenda 21 and the Rio Declaration are not binding instruments, and ultimately
implementation of the principles within them rests on governments at a national level.
However, the United Nations is influential, particularly in encouraging international
cooperation.
5
See http://www.un.org/geninfo/bp/enviro.html for information about participants.
Rio Declaration on Environment and Development, Report of the United Nations Conference on the Human
Environment, Stockholm, 5-16 June 1972 (United Nations publication, Sales No. E.73.II.A.14 and corrigendum)
7
Ibid
8
.Agenda 21, United Nations Conference of Environment & Development, Rio de Janerio, Brazil, 2 to 14 June
1992
6
Page 7 of 18
Numerous other global conferences have since taken place, explicitly dealing with
‘sustainable development’. The Johannesburg Declaration introduced a new perception of
sustainable development, by emphasising the importance of integrating economic
development, social development and environmental protection. These areas can be seen
as interdependent on each other. The declarations overall aim is to establish more efficient
means of production and consumption, protect environmental resources and encourage
social development in a sustainable way. This will help to diminish poverty in developing
countries.
The New Delhi Declaration of Principles of International Law Related to Sustainable
Development9 was released in 2002 by the International Law Association Committee on the
Legal Aspects of Sustainable Development, and is one of the most influential documents in
relation to the regulation of sustainable development. The declaration highlights seven main
principles, some of which are highlighted below.
Firstly, “the duty of States to ensure sustainable use of natural resources”10 provides that all
states have the right to govern their natural resources however they see fit through their
own national legislation. However, this comes with an overarching responsibility not to have
a negative impact on the environment of other states. States must not be short sighted in
the use of their resources, and must always act with the implications their actions will have
on future generations in mind.
“The principle of equity and the eradication of poverty”11. This takes into account the rights
of the needs of future generations and balances them against the rights of the present
generation, with regard to the use of natural resources. In the present generations use and
enjoyment of natural resources there must be an awareness of the impact this will have on
future generations.
9
4 ILA Resolution 3/2002: New Delhi Declaration Of Principles Of International Law Relating to Sustainable
Development , in ILA, Report of the Seventieth Conference, New Delhi (London: ILA, 2002).
10
Ibid , Principle 1
11
Ibid, Principle 2
Page 8 of 18
The third principle is “The principle of common but differentiated responsibilities”12. The aim
of this is that states should work together to attain global sustainable development targets
and protect the environment. Recognition must be made of the differences between
developing and developed countries and the impact that environmental, social and
developmental considerations may have. Developed countries must take overall
responsibility in ensuring the eradication of unsustainable growth and assist developing
countries in strengthening themselves.
“The principle of common but differentiated responsibilities”13 acknowledges that states
must work together in order for sustainable development to succeed, and this includes the
involvement of both governmental and non-governmental organisations, and corporations.
The precautionary principle14 is primarily about the avoidance of activities that have the
potential to negatively impact human health, the environment and natural resources. This
involves being aware of the uncertain outcome of some technological or scientific
advancements.
The principle of integration and interrelationship, in particular in relation to human rights
and social, economic and environmental objectives15 emphasises that all these areas touch
upon sustainable development and coordination between the areas is necessary for
sufficient regulation. This involves cooperation at all levels from global to national to local
policies, and is fundamental to the achievement of sustainable development.
The above principles, in addition to others, form a framework for sustainable development.
In the absence of a more official international agreement, they are central in guiding
national governments as to what they should aim for. The global reach of the declaration
also ensures international consistency.
12
Ibid, Principle 3
Ibid, Principle 3
14
Ibid, Principle 4
15
Ibid, Principle 7
13
Page 9 of 18
In addition to these conventions, more recently, in May 2003 the International Committee
on International Law on Sustainable Development was formed. Its main objective was to
focus on the legal status and implementation of sustainable development.
4. Sustainable Development at a National Level
Due to the nature of implementing sustainable development, and differing approaches,
analysis of the concept at a national level is not straightforward. Furthermore, research and
analysis in the area at a national level is often limited or ambiguous. However, global
declarations such as the New Delhi Declaration have led to a certain amount of coordination
between different states. To examine the incorporation of sustainable development at a
national level further, the provisions in place in the United Kingdom will be looked at.
There is no overall sustainable development framework within UK environmental law.
Instead sustainable development is implemented in practice through policy and
recommendations. Although there is some provision for sustainable development
incorporated within other existing legislation. For example Sites of Special Scientific Interest
(‘SSSIs’) are protected under the Wildlife and Countryside Act 1981, and development on
these sites is dealt with principally through Planning Policy Statement 9 Biodiversity and
Geological Conservation16.
Other positive advances in support of the concept within in the UK include sustainable
development being a key feature of national climate change legislation. In particular the
Climate Change Act 2008 (CCA) set the target of cutting emissions of greenhouse gases by
80%, from the 1990 levels by 2050. This agenda by nature influences other policy areas,
which must take the policy into account. This type of approach is key to the success and
regulation of sustainable development in the UK. Governments in creating new legislation
must take on board the recommendations in the CCA. This can be shown in the case of R (on
the application of London Borough of Hillingdon and others) v Secretary of State for
16
Communities and Local Government Committee – Eighth Report, Chapter 4,2005 Sustainable Development
Strategy
Page 10 of 18
Transport17. This case dealt with the expansion of Heathrow, and the outcome of the case
was that a decision in support of expansion should be reconsidered due to the Climate
Change Act. This application of the CCA highlights that the UK is able to successfully
produce and enforce legislation which promotes sustainability.
In the United Kingdom, and many other countries the basic institutional structure and
provision for policy to achieve sustainable development at a national level does exist.
However, often governments can be short sited and new policies often look to achieving
present goals rather than taking the welfare of future generations into account. This results
in some existing principles, policies and good practice relating to sustainable development
often being ignored.
It can be argued that the regulation of sustainable development in the UK lacks sufficient
leadership. With changing governments, and devolved Parliaments the UK, the approach
taken has varied over time and between jurisdictions and sectors. There is inconsistency in
relation to the true understanding of the concept and no coherent framework or order of
priority in decision making.
For example, when the Labour Government was in power in 1999 sustainable development
was a main policy consideration featured in a White Paper entitled ‘A better quality of lie’.
To ensure that the Government made progress in this area, Deputy Prime Minister John
Prescott established the Sustainable Development Commission (SDC), a non-departmental
public body charged with the role of advising the UK Government on sustainable
development.
The commission reported directly to the Prime Minister of the United Kingdom, and each of
the First Ministers in the various devolved Governments that make up the UK. The
commission officially oversaw sustainability through considering progress made toward
meeting targets, and support across different departmental bodies. During its time the
17
R (on the application of London Borough of Hillingdon and others) v Secretary of State for Transport [2010]
EWHC 626 (Admin)
Page 11 of 18
commission published a number of reports and recommendations regarding sustainable
development.
However, when the Coalition Government came into power the Commission lost its funding
and was shut down in 2010. This came with a lot of criticism, and was seen as a backward
step in ensuring the protection of the environment for future generations.
Under the 2010 to 2015 Conservative and Liberal Democrat coalition government an article
was published in 2011, stating that the UK Government would support an initiative to build
Sustainable Development Goals. This recognised the importance of working together with
other states to ensure protection of the world’s natural resources. This was shown through
meetings between the UK Deputy Prime Minister Nick Clegg and President Santos of
Colombia. This marked the UK as one of the first developed countries to officially back the
Sustainable Development movement. Deputy Prime Minister Nick Clegg Said: “I welcome
President Santos’s initiative, challenging world leaders to establish Sustainable Development
Goals and look forward to working closely with the Colombian government and our
international and EU partners to develop this idea in the run-up to the Rio+20 summit in June
next year.”18
With a new Conservative Government recently elected in the UK, it remains to be seen what
will happen in the upcoming future with regard to a plan for the regulation and promotion
of the concept of sustainable development in the UK. In order to make positive progress the
role and stance of sustainable development in relation to economic growth and the
environment must be clarified. The UK has a strong legal framework, in which the
incorporation of sustainable development is possible. Although this already exists to a
certain extent perhaps the introduction of stricter guidelines and enforcement would help
in clarifying the governance of the concept.
18
‘Deputy Prime Minister and Environment Secretary welcome initiative on Sustainable Development Goals’,
UK Government Press release, November 2011
Page 12 of 18
5. The influence of the European Union
The UK is a member of the European Union, and as a result EU Law also has an influence on
the application of sustainable development at national level. EU regulation, like
international declarations, provides a framework for consistency between states and also
highlights the relationship and correlation of practices at a national level.
Article 11 (ex Article 6 TEC) of the consolidated version of the Treaty of the Functioning of
the European Union19 establishes the integration principle and makes particular reference
to environmental concerns, stating that “Environmental protection requirements must be
integrated in the definition and implementation of the Community policies and activities, in
particular with a view to promoting sustainable development”.
This establishes awareness of the environment as a specific duty of the union, and
emphasises this as being a part of the overall goal of sustainable development. This means
through awareness of environmental protection in creating new policies and enforcing
existing ones the principle of sustainable development can be incorporated into all
European policies.
Despite being explicitly mentioned, sustainable development in itself is still not awarded the
status of legal principle within the EU. Rather it is treated as an objective which should be
strived for through other policies. However, the imposition of the duty to incorporate
environmental requirements on community institutions does positively promote the
enforcement of sustainable development. It places a duty on community institutions to
integrate environmental requirements and thus promote sustainable development.
Furthermore, as well as including the principle in the establishment of policies, the
European institutions must also ensure implementation of these objectives. This therefore
19
The 2007 Lisbon Treaty amended the Treaty on European Union and the Treaty on the Functioning of the
European Union, and created a consolidated version of both. What was Article 6 now comes under Article 11
of the consolidated version of the Treaty on the Functioning of the European Union.
Page 13 of 18
means that the commission, council and parliament are all involved in ensuring the goal of
sustainable development is achieved.
Measures in support of sustainable development continue to be adopted by the European
Union. For example, an EU sustainable development strategy was introduced by the Council
of the European Union in June 2006.20 This consolidates the commitment that the EU has to
the concept of sustainable development.
Support for sustainable development is present in a number of EU policies, for example
climate change. Yet despite this, in some areas efforts to implement sustainability need to
be increased. The 2009 review of European Union Sustainable Development Strategy21
examines the existing EU policy measures covered by the EU SDS and also looks at the
future of the EU SDS and how this interplays with the Lisbon strategy. It concludes that
sustainable development is a fundamental objective of the EU under the Lisbon Treaty,
which provides an “overarching policy framework for all Union policies and strategies”.
However clearer governance, implementation and monitoring is still needed.
Recent developments have shown the progressive and active role of the European
Institutions in influencing global initiatives. A resolution was passed in November 2014 by
the European Parliament which supports the construction of a unified and thorough global
development framework after 2015. Support for this was reiterated by the European
Council in 2014, which recognised the success of this agenda as a key goal for the EU.
This principle of ‘universality’ is important to the success of implementing sustainable
development. EU goals and policies will only be successful if each member state adopts
these policies at a national level. Only then will sustainability goals be achieved collectively.
20
See European Council Doc 10117/06 of 9 June 2006
Mainstreaming sustainable development into EU policies: 2009 Review of the European Union Strategy for
Sustainable Development, Communication from the commission to the European Parliament, the Council, the
European Economic and Social Committee and the Committee of the Regions, Brussels, 24.7.2009 COM(2009)
400 final
21
Page 14 of 18
In creating new policies and regulations Governments and International bodies must keep
the true aim of sustainable development at the forefront, and not use it as an ‘umbrella
term’ for other issues. The international community is scheduled to meet in September
2015 in order to agree on a new framework for sustainable development, with the overall
aim of eradicating poverty. The EU plays a significant part in this. The current European
Commissioner for International Cooperation and Development is focussed on the
establishment of a universal post-2015 development agenda, with focus on introducing
legitimate means to implement this. The summit, which is to be held in New York in
September, should result in a unified approach toward eradicating poverty and sustainable
development.
Analysis and conclusion
It is clear from the number of international conventions and inclusion of the concept in EU
regulations that there is a growing acceptance and recognition of the importance of
sustainable development on a global level. It can be said that sustainable development is
beginning to become embedded into global policy, and thus is also now being incorporated
into national law.
This can be seen in the UK through government policy and initiatives which acknowledge
sustainable development as an important ongoing goal. However, ultimately the very nature
of the concept means that for sustainable development to be successful, it must be
accepted an implemented on a global scale. This requires states to work in coordination
with one another. The support given by the EU institutions helps to unify the European
countries in achieving this.
The main problem that remains is balancing developed and developing countries needs and
wants. In order to develop and be able to support themselves developing countries must
have the support of the developed countries, and likewise developed countries must
Page 15 of 18
balance their growth and use of resources to ensure that those in developing countries and
future generations have sufficient resources.
The evolutionary nature of sustainable development means that new policies continue to
develop. Positive progress is being made, and this is shown through the acceptance of
sustainable development as a concept at both on an international and national level.
However, more needs to be done to create a framework which regulates sustainable
development and stricter enforcement measures should be introduced. The achievement of
sustainable development is also an ongoing target which will always need to be actively
maintained.
The concept is difficult to regulate as there is no clear definition of the term, and it is not
possible to make specific regulations or laws which can apply unanimously to all states. Each
country must aim to maintain sustainable development through incorporation of the
concept in their own way through national laws and policies.
Finally, it must be reiterated that the goal of achieving sustainable development is only
possible if there is international unanimity. States must support each other and balance the
needs of developed and developing countries, in order to provide a sustainable future for
generations to come.
Page 16 of 18
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Global Declarations
Agenda 21, United Nations Conference of Environment & Development, Rio de Janerio,
Brazil, 2 to 14 June 1992
ILA New Delhi Declaration of Principles of International Law Relating to Sustainable
Development, International Environmental Agreements 2002, Volume 2, Issue 2, pp 209-216
The Johannesburg Declaration, Adopted at the 17th plenary meeting of the World Summit
on Sustainable Development, on 4 September 2002, A/CONF.199/20*
1992 Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (vol. I) /31
ILM 874 (1992) / United Nations publication, Sales No. E.73.II.A.14 and corrigendum
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Declaration), U.N. Doc. A/Conf.48/14/Rev. 1(1973); 11 ILM 1416 (1972)
European Union Legislation
Consolidated Treaty on the Functioning of the European Union (2007)
Lisbon Treaty 2007
The review of the EU sustainable development strategy, European Council Doc 10117/06 of
9 June 2006)
Page 17 of 18
Mainstreaming sustainable development into EU policies: 2009 Review of the European
Union Strategy for Sustainable Development, Communication from the commission to the
European Parliament, the Council, the European Economic and Social Committee and the
Committee of the Regions, Brussels, 24.7.2009 COM(2009) 400 final
UK Legislation and sources
Communities and Local Government Committee – Eighth Report, Chapter 4,2005 Sustainable
Development Strategy
Climate Change Act 2008
Wildlife and Countryside Act 1981
R (on the application of London Borough of Hillingdon and others) v Secretary of State for
Transport [2010] EWHC 626 (Admin)
Online Resources
http://www.cisdl.org
http://www.un.org/geninfo/bp/enviro.html
https://www.gov.uk/government/news/deputy-prime-minister-and-environment-secretarywelcome-initiative-on-sustainable-development-goals
Word Count: 4,462
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