21 AUGUST 2002

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Sustainable development – tracing the evolution of a concept under international law

The World Summit on Sustainable Development (WSSD) kicks off on 26 August, the expectations are many but scepticism is equally high as many fear it would be another talking shop for the international community where few if any other commitments are made. In reality however, the WSSD will surely serve to influence the legal interpretation of sovereignty over of natural resources and the concept of sustainable development. Dr Simone Borg looks closer at the issues at hand.

Sovereignty over Natural Resources

Statehood implies absolute sovereignty over a particular territory. Natural resources situated within the territory of a State are therefore prima facie subject to its jurisdiction which extends over the land territory, its territorial sea, and its superjacent airspace. The State also has sovereign rights to exploit the natural resources of its continental shelf and, if it is has declared an exclusive economic zone, it has sovereign rights over all the resources and economic uses of this zone, as well as rights and responsibilities regarding the protection of the marine environment therein.

The attitude of States towards the principle of sovereignty over natural resources situated within their jurisdiction has evolved over these last three decades from what was in the beginning an absolute stand of permanent sovereignty over natural resources to become another example of the relative nature of the concept of the reserved domain of States.

Following the phasing out of colonisation, the newly independent developing States were faced with the problem of foreign ownership of their natural resources. No distinction was made between living and non-living resources and any restriction, over the home State’s exclusive sovereignty over them, required its specific consent. States enjoyed an exclusive right to exploit such resources, in accordance with their national interests irrespective of their ecological well-being.

The United Nations Conference on the Human Environment held in Stockholm in 1972, was a turning point in the history of the international community as regards the conservation of natural resources and the environment in general. Although there existed before 1972, a number of legal instruments and sporadic diplomatic efforts to protect the environment, this Conference was the first opportunity where States addressed the environmental issue on a global level and more particularly as a primary and not a consequential problem.

Principle 21 of the Stockholm Declaration deals with sovereignty over natural resources and is considered to be the founding principle of international environmental law.

It declares: "States have in accordance with the Charter of the UN and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to other states or to the areas beyond national jurisdiction".

In other words, once a link is established between the environmental degradation of States or of the areas beyond national jurisdiction and the manner in which a State is exploiting its natural resources, the matter can no longer be considered as subject solely to the perpetrator’s reserved domain to the exclusion of the intervention of other States but becomes instead a matter of international concern.

Later on in 1974, at a special session of the United Nations General Assembly, the Declaration on the Establishment of a New International Economic Order (NIEO) reaffirmed permanent sovereignty over natural resources and the home State’s right to nationalise them. Article 2 of the Charter of Economic rights and Duties of States holds that: "Every State has and shall freely exercise full permanent sovereignty including possession, use, disposal over all its natural resources."

The inception of environmental law was the result of this need felt by States to have a series of rules and principles to control or regulate State activities which had an impact on the natural environment and hence also on natural resources. Consequently, it is a regime which involves questions of sovereignty, jurisdiction, regulation and State responsibility. In the late eighties the United Nation set up a Commission on Environment and Development chaired by Gro Harlem Brundtland Prime Minister of Norway, which later presented a report to the State of the World Environment. This report, entitled "Our Common Future", also known as the Brundtland Report, held that these two conflicting human needs of development and environmental protection only come to terms, by ensuring that such development is sustainable and by providing the necessary machinery to increase international co-operation, to achieve this objective. It was this report which introduced the concept of sustainable development as: "Development that meets the needs of the present, without compromising the ability of future generations to meet their own needs". The United Nation Environment Programme amplified upon this emerging concept stating that it requires; "The maintenance, rational use and enhancement of the natural resource base, that underpins ecological resilience and economic growth" and "implies progress towards international equity".

The 1992 United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro had sustainable development as its underlying objective. Principle 2 of the Rio Declaration in fact, affirms that a State’s responsibility in the exercise of its sovereign right to exploit its natural resources, must be qualified not only in terms of its environmental policy obligations but also in terms of its developmental policy

The 1992 Rio Declaration of the United Nations Conference for environment and Development (UNCED) also reproduced Principle 21 of the Stockholm Declaration in its Principle 2. According to the Rio Declaration:

"States have, in accordance with the Charter of the United Nations and the principles on international environmental law, the sovereign right to exploit their own resources pursuant to their own environmental and development 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".

Unlike the Stockholm Declaration therefore, the sovereign right of States to use their natural resources is no longer solely determined by their environmental but also by their developmental policies. Sovereignty over natural resources under the Stockholm Declaration was expressed only in terms of national ecological needs whilst under the Rio Declaration, State sovereignty over natural resources is therefore also subordinate to the State’s development policy. UNCED also adopted Agenda 21, an action plan to safeguard natural resources and the environment of the entire planet in accordance with the concept of sustainable development.

It has been said however that the problem of achieving sustainable development is easier to identify than to resolve and it is essentially, one of negotiating balanced solutions, taking into account both developmental and environmental factors in the particular context of the problem in issue and of the wider environmental impacts of the possible solutions.

Even after UNCED, not much has been said as how to implement the concept of sustainable development in international environment law. It is rather difficult in reality to determine, to what extent if at all does international law oblige States to conserve natural resources and ensure that their exploitation is sustainable. Gro Harlem Brundtland who had chaired the Commission that came up with the concept, hailed sustainable development, as none other than an underlying concept for economic growth. Although this allegation has served to confirm that healthy development is dependant upon a healthy environment, this assimilation of the concept with economic growth has also had negative repercussions, in the sense that at times, States have deliberately permitted the principle of sustainable development to be usurped by the notion of sustained growth. This has led to the expressions to be used at times interchangeably, with the danger that it might be interpreted to mean, that growth is not actually harmful to the environment but to the contrary, essential to its very protection.

Sustainable development has nevertheless been widely accepted as the ultimate objective of international environmental policy, of Agenda 21 itself and of the machinery i.e. the United Nations Commission for Sustainable Development, set up to see to the implementation of Agenda 21, following UNCED.

In the January of the same year that UNCED took place, an equally important, albeit less publicized stand was taken by the international community when the President and the members of the United Nations Security Council included environmental disputes as constituting a potential threat under Chapter VII and declared non-military sources of instability in ecological fields have become threats to international peace and security. The application of enforcement measures under Chapter VII as already stated, cannot be prejudiced by the concept of the ‘reserved domain’ which states might bring forward as a defence against the Organisation’s intervention.

The position adopted by the Security Council consolidates the emerging rule of international environmental law that State activities which damage or harm their natural resources have negative international repercussions and hence are subject to regulation under international law to ensure the conservation and protection of these resources.

After UNCED the formulation of multilateral environmental agreements and State practice is in keeping with this trend of regulating natural resource use on the basis of sustainability and this may lead to sufficient acquiescence by States with respect to these conservation obligations, to become binding legal-norms, forming part of the international regime for the protection of natural resources. Some international lawyers however also claim that widespread adherence to the concept, may even lead to the obligation to conserve natural resources, wherever they occur, in accordance with the principle of sustainable development.

As a result of these developments new concepts of international property and utilisation of natural resources have emerged, based on different notions of economic security, ecological protection and common interest. These new concepts call for a redefinition of the concept of domestic jurisdiction under international law. The notion of absolute sovereignty over natural resources, requires fine tuning, as it cannot continue to be used as a guise for the exclusion of the interests of other States but should include a commitment to co-operate for the good of the international community at large, which has a right to a healthy environment. It is with this perspective in mind that the international community at the forthcoming World Summit on Sustainable Development will consider how the concept of sustainable development can be applied in practice to determine what needs to be done to ensure that human use of the environment and natural resources remains sustainable.The evolution of this concept of sustainable development, however it is not simply influenced by international legal trends. There are a number of other factors, outside the scope of law, namely, international politics, public pressures, scientific evidence and technological advancement as well as international economics and trade which all have a say within the international community. These contributing factors are as influential as the underlying principles of the international environmental regime and one cannot assess what will be the outcome of the Johannesburg Summit on Sustainable Development solely in the light of the above.

The Political Factor

Doubtlessly the political factor will be crucial in determining the success of the forthcoming Summit. Consensus is reached within the international community only if there is a political decision to do so. Any progress registered in international relations ultimately depends upon the political will of States and hence international law evolves to the large extent to meet with emerging policies endorsed by States. International environmental law recognises the environment as a holistic entity – the biosphere, to be protected in its entirety. This is relatively an innovative concept in the realm of international politics which meets with considerable opposition, because it is deemed impossible to consider in an effective manner, a variety of problems, under an all embracing regime. Developing States often argue that this emphasis on the environment as a holistic entity, is a new tool in the hands of the richer developed States whereby the latter could intervene in their domestic affairs and impede their economic development.

These political differences, are a product of an international system based on State sovereignty, nevertheless the ‘environment’ as one whole entity was not only accepted as an international legal concept, but has been endorsed from a political perspective ever since the Stockholm Conference on the Human Environment. There are two main reasons for this major breakthrough: first and foremost scientific evidence pinpointed at the common denominator underlying all these diverse threats and problems, namely their being an assault on the natural order and that there existed a link between the various phenomena adversely affecting the environment. Secondly public pressure, motivated by various non-governmental organisations and people who had first hand experiences of specific environmental threats and damages, had considerable influence upon the governments of the developed states. Various States in fact, had already attempted with successful results to address environmental issues on a bilateral and regional level.

Nevertheless political division remains to hinder progress in the field of environmental protection. Thirty years after the Stockholm conference, and ten years after the Earth Summit in Rio de Janeiro, not much has been done to overcome the difficulties imposed by the present State - system which is in itself a major component of the environmental problem. Political differences mainly emerge as a result of different economic situations. Developing States are often plagued by economic problems such as, the eradication of poverty, hunger, disease, civil strife and political unrest.

In the least developed States, daily life for the majority of the population, is a question of survival and in this regard their reluctance to regulate their exploitation of natural resources, is understandable.

The Economic Factor

Attempting to safeguard the environment from an international perspective creates various economic implications. The increased short-term costs borne by the economy which must be addressed against the long-term costs of doing nothing, impinge on the national economy irrespective of who assumes such costs. These costs are then reflected in the export prices of national products and on the international level, the environmentally friendly States risk being penalised because they are placed at a competitive disadvantage. This distortion is further accentuated by an interstate system founded on free trade. Environmental standards are often considered as an obstacle to free trade or cleverly disguised trade barriers, contrary to the principles of the World Trade Organisations. Globalisation so far has not done much to respect this notion of sustainability of natural resources.

The Scientific –Technological Factor

Science and technology play a major role in environmental protection for better and for worse. The increasingly invasive nature of technology led to environment degradation not only because of industrialisation but also as a result of unsustainable consumption patters and over exploitation of natural resources. Advances in technology however may produce environmentally friendly methods and substitutes for harmful activities and substances. Scientific evidence is a major driving force behind the need to recognise the detrimental state of the global environment as a result of anthropogenic activities.

On the other hand, scientific uncertainty remains a major trump card in the hands of bureaucrats who advocate a wait-and-see attitude. Science which has therefore played a special role in the development of international environmental law may also hinder its achievements and implementation. Current scientific information is unable to predict all the consequences of various human activities and interventions. Decisions regarding environmental issues cannot await scientific certainty because damage is often measurable only years after the actions have occurred. Environmental policy must be adopted assuming that harmful consequences will occur unless activities or products are proven safe. This is the so called precautionary approach, which characterises so many conventions on environmental protection. Treaties concerning environmental issues in fact, usually provide the appropriate machinery to amend any rules and principles laid down, as scientific and technological knowledge develops and situations change. The situation as it is stands at present, calls for unprecedented levels of co-operation and financial burdens in the face of scientific uncertainty.

The WSSD

The influence exerted by these contributing factors has led the international community to arrive at Johannesburg with the firm attitude that environmental concerns cannot be addressed unless they are an integral part of socio-economic issues. This is the ultimate development in interpretation of the concept of sustainable development. So much so that the up coming Summit will not be basing its main task to set parametres for the implementation of Agenda 21 in the light of developments which occurred in Doha and Monterrey and the commitments expressed in the Millenium Declaration. Even the main list of priorities set for Johannesburg address socio-economic issues namely poverty eradication, making globalization work for sustainable development, sustainable management and conservation of the natural resource base, improving governance and democratic processes at all levels, financing sustainable development and education, science and technology for decision-making.

As it witnessed incidents which showed that local and national behaviour has both regional and global repercussions over time periods far in excess of their duration, the international community learnt at its own expense that environmental degradation was neither limited by time nor space. The international system found itself ill-equipped to deal with such situation as States came to realise that it is not only the preservation of the intrinsic environmental value which is at stake, but also sustainable economic development, political stability, security between various States or regions and above all, the quality of life and the long term habitability of the planet. Hence the international community has come to conclude that environmental problems cannot be properly dealt with unless socio economic issues which are the underlying cause of the unsustainable use of natural resources are not addressed.

Dr Simone Borg is a legal advisor at the Ministry of Home Affairs and the Environment. She is a member of the National Commission on Sustainable Development and a member of the Committee on Sustainable Development of the International Law Association. Dr Borg is also a lecturer in International Law and Environmental Law at the University of Malta.

 



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