International law and sustainable development - tools for addressing climate change.

AuthorHalvorssen, Anita M.
PositionSustainable Development, Corporate Governance, and International Law

We are all in the same boat and we must learn to live responsibly - or we will sink together.

--Muhammad Yunus (1)

  1. INTRODUCTION

    Climate change and the more recent threats to the natural life-support systems have heightened the focus on international cooperation, sustainable development, and further limits to State sovereignty in order to solve these global problems. Climate change is one of the biggest sustainable development challenges. Much of the progress made toward the goal of sustainable development will very likely be destroyed by climate change. In the context of the recent flooding in Pakistan, experts project that it will take years, maybe even decades, to replace the lost infrastructure. (2)

    Only by integrating the paradigm of sustainable development in a more effective way into international and domestic law can certain irreversible climate change impacts be avoided. Despite recent set-backs in international negotiations, such as occurred in Copenhagen, international law has an important role to play by offering the legal framework which can promote a move toward sustainable development. The sustainable development principles, though most of them are not legally binding, are central to the interpretation, implementation, and further development of the climate change regime. Addressing climate change requires a paradigm shift towards "a low-carbon development strategy [which] is indispensable to sustainable development." (3)

    The tension between developing and industrialized countries regarding economic development and protection of the environment has been on-going since the Stockholm Conference in 1972. However, in the context of climate change, the problem becomes critical. The anthropogenic effect on the climate system demands that strong action be taken now by all States to implement sustainable development to avoid the worst impacts. (4) The tipping point before the onset of catastrophe is no longer decades away. (5) It is in the mutual self-interest of nation states to acknowledge the seriousness of climate change and implement sustainable development principles.

    Climate change is a global problem that calls for international cooperation. Sustainable development implies the need for industrialized countries to reduce their greenhouse gas (GHG) emissions to address climate change, but also, I argue, to give room for developing countries to develop. (6) Developing countries will continue developing in order to eradicate poverty and, hence, they will require more of the polluting space in the atmosphere. (7) If we are to effectively tackle climate change, development in developing countries needs to be sustainable, enabling developing countries also to reduce their emissions. I will argue that providing technology, capacity-building, and financial assistance to developing countries through funds established under the climate change regime and other institutions will be the most urgent element to facilitate developing countries' participation in addressing climate change by taking "mitigation actions" alongside industrialized countries complying with their emission reduction commitments. Requiring funding as a condition for action by developing countries to address climate change, needs to be recognized as one of the core elements in the climate regime based on the principle of common, but differentiated responsibility. However, it is paramount that these funds are managed in a transparent and accountable manner and that there is a balanced representation of developed and developing countries in the decision-making bodies.

    This paper will examine the concept of sustainable development in the context of climate change. In this process, I will first briefly describe its origin and development. Second, I will focus on the definition, core elements, and principles of sustainable development. Third, I will analyze the legal status of the sustainable development in international law, and finally, I will examine which of its principles apply to climate change and what implications this has for the design of current and future climate change agreements, with a particular focus on the transfer of technical and financial assistance.

  2. ORIGIN AND DEVELOPMENT

    1. Stockholm Conference and the Brundtland Commission

      Historically, sustainable development originated from efforts made for the conservation of nature which evolved into international environmental law. (8) The concern for the extinction of certain species began in the late 19th century leading to cases surrounding fur seals (9) and oysters. (10) Yet, the environment as the whole biosphere, consisting of interdependent ecosystems, was first introduced as a matter of concern on the international scene from both a scientific and political perspective at the Stockholm Conference on the Human Environment in 1972. (11)

      Stockholm represented a turning point in the way environmental issues were addressed at the international level. Whereas earlier international efforts focused on the environmental problems of the industrialized countries, developing countries actively participated at Stockholm, insisting that the environment had to be examined in the context of development issues. (12) The following remark by the Sri Lankan ambassador to the U.N. in 1970 illustrates the outlook of most developing countries at the time:

      [D]eveloping countries have of late been warned of the price that has to be paid in the form of environmental pollution for industrial development. All developing countries are aware of the risks, but they would be quite prepared to accept from the developed countries even 100 percent of their gross national pollution if thereby they could diversify their economies through industrialization. (13) However, the attitude among developing countries began to change as the international community realized it faced a common threat: the degradation of the global environment. On the international plane, "[n]ations cooperate when convinced that their interests will be served by cooperation." (14) This cooperation is evidenced by the hundreds of environmental treaties that have been adopted since Stockholm. By entering into these treaties the States voluntarily relinquished some of their sovereignty, allowing international law to dictate how they were to address some of their domestic environmental issues; this would have been unthinkable just a few years earlier. (15) Most States eventually established environmental ministries and adopted environmental regulations domestically, thereby implementing their international obligations. (16)

      The Stockholm Conference emphasized how human actions can irreversibly harm the environment and staked out a course: the human environment needs to be protected and enhanced through common efforts at the local, national, and international levels. (17) At the Stockholm Conference, States did not adopt any treaties, yet they did agree on two important documents: the Declaration of Principles for the Preservation and Enhancement of the Human Environment (Stockholm Declaration) and an Action Plan, making suggestions for environmental management. (18)

      The Stockholm Declaration, unlike a convention, is a non-binding "soft law" document consisting of 26 principles, which form the precursor to the Rio Declaration of 1992. (19)

      While the Stockholm Declaration was the first of its kind and for the most part was merely reiterated in the Rio Declaration, it is the latter document that is most often referred to. (20) However, the Stockholm Declaration is credited as introducing the most ambitious and forward-looking set of environmental principles of the international community of the time. (21)

      In 1983, Gro Harlem Brundtland, the former Prime Minister of Norway, was appointed chair of the World Commission on Environment and Development by the UN Secretary General. (22) The Brundtland Commission's mandate was to examine the divergence between continued economic growth and an environment that was steadily deteriorating. (23) Synthesizing earlier aims enunciated in instruments such as the World Charter for Nature, the Brundtland Commission introduced the concept of sustainable development to the broader international community and defined it as "[development that] meets the needs of the present without compromising the ability of future generations to meet their own needs." (24)

      The Brundtland Commission intended to demonstrate how human survival might depend on the international community's ability to elevate "sustainable development to a global ethic." (25) In its report, "Our Common Future," it set forth the main challenges to the world community: achieving sustainable development by the year 2000 and beyond by agreeing on multilateral solutions and a restructured economic system. (26) The Commission called for greater cooperation to eradicate international poverty, manage the global commons, and maintain peace and security worldwide. (27) In order to broaden the spectrum of issues addressed, it defined the "environment" as "where we all live," not a sphere separate from human actions and needs, and it defined "development" as "what we do in attempting to improve our lot within that abode," not the limited focus of development assistance for poor nations. (28) Hence, the Commission stated that the environment and development are inseparable, recognizing the growing interdependence among nations in dealing with economic and environmental problems. (29)

    2. Rio Conference

      In 1992, on the 20th anniversary of the Stockholm Conference, the international community gathered in Rio de Janeiro, Brazil for the UN Conference on Environment and Development (UNCED or "Earth Summit"). In addition to the 176 States that sent representatives to the conference, over 50 intergovernmental organizations and thousands of non-governmental organizations (NGOs) were present. (30) Essentially, the legal principles regarding sustainable...

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