The Role of International Forums in the Advancement of Sustainable Development

Author:Marie-Claire Cordonier Segger
Position:MEM (Yale), BCL & LLB (McGill), BA Honors, is Director of the Centre for International Sustainable Development Law ('CISDL') in Montreal, Canada
Pages:4-18
 
CONTENT
4FALL 2009
INTRODUCTION
This article briefly discusses emerging trends in interna-
tional policy and law on sustainable development, focus-
ing on how international forums can advance sustainable
development. Drawing on re cent experie nce in global policy
making processes, international treaty regimes, and decisions of
international c ourts and tribunals, this article argues that inter-
national f orums can contribut e constructively to global efforts
to balance a nd integrat e competing economic, human rights,
and environmental priorities for development that can last over
the long term. It n otes that diverse international regime s quite
appropriately contribute differently to sustainable development,
depending on the specific challenge being addressed or the par-
ticular resource being jointly-managed. The devi l, this article
suggests, is in the details.
GLOBAL COMMITMENTS TO MORE SUSTAINABLE
DEVELOPMENT
Finding one acc epted, unive rsal definitio n of sustainable
development that is appropriat e for all cultures and region s of
the world is not straightforward. International understanding of
both sustainability and development has evolved a great deal in
recent dec ades. Like other important global objectives (peace,
democracy, human righ ts, freedom), sustainable development
can take on new meanings in different contexts.
In the Preamble to t he 1986 Declaration on the Right t o
Development, States focus on development as iterative processes
to improve human well-being.1 While debates persist in certain
contexts, major international institutions active in development,
as well as international development agencies, adopt variations
of this approach.2 This article takes both a principled and a prac-
tical approach. First, as a matter of principle, development can
be understood as the processes of expanding peopl e’s choices,
enabling improvements in collective and individual quality of
life and the exercise of full freedoms and rights. Indian Nobel
Laureate Amartya Sen, i n Development a s Freedom, prov ides
theoretical underpinnings for this approach. As he describes it,
development is a pro cess of expand ing the real personal free -
doms that people might enjoy.3 Th e expansion of freedoms, as
Sen notes, can be analyze d through recognition of the “instru -
mental” and “constitutive” roles of development (the means and
the ends ). Second, on a practical level, it can be no ted that in
2000, the M illennium Development Goals provided an import-
ant g lobal set of targets, and that among 194 countries in the
world, only 38 countries are characterized as developed accord-
ing t o the Huma n Development Index; with the vast majority
of the world’s population in 156 developing countries.4 Ju st in
terms of development, a great deal remains to be done.
One important critique of development holds that if all
human beings adopt the ext raction, product ion, consumption,
and pollution patterns that are currently common among some
countries, humanity will quickly exceed the carrying capac-
ity of the world’s resources, leading to collapse.5 In short, this
view argues , cu rrent models of economic dev elopment are
unsusta inable. However, State s ho ld s overeignty over their
own natural resources, and, if de veloped countries achieved
their present standard of living due to exploitation of resources,
it is scarcely just to see k to prevent develop ing countries from
adopting the same patterns, in sp ite of impacts on the environ-
ment or long-term global survival. The global objective of sus-
tainable development emerged in the 1980s as a way to bridge
these deadlocked views of developed and developing countries
and to address concerns abo ut the long-term sustai nability of
development. In certain sectors of natural resource development,
where the common resource has a clear transboundary na ture
and can be studied scientifically (such as fish stocks or perhaps
shared watercourses), common problems are clearer and create
very practical imperatives for States to negotiate rational com-
mon management regimes. In other areas, however, particularly
where impacts are diffu se, global , and cumulative over t ime
(such as depletion of the common at mosphere, loss of global
biological diversity, depletion of soil or seed r esources), it is
much more difficult to find common starting points to develop
agreements. The concept of sustainable development emerged to
help countries find solutions to these dilemmas and has become
a key objective of many important international economic, envi-
ronmental, and social agreements and regimes today.
Internat ional forums play important role s in adv ancing
sustainable development . This article focuses on three. First, it
argues that, through international “soft law” policy-making pro-
cesses on sustainable development, States have worked to refine
the role of international forumS in the
aDvancement of SuStainable Development
by Marie-Claire Cordonier Segger*
* Marie-Claire Cordonier Segger, MEM (Yale), BCL & LLB (McGill), BA Hon-
ors, is Director of the Centre for In ternational Sustainable Development Law
(“CISDL”) in Montreal, Canada; Senior Director of Research for Sustainable
Prosperity; and a Fell ow of the Lauterpacht Ce ntre for Int ernational Law at
Cambridge University in the UK. This article shares thoughts with her earlier
works in Sustainable Development in International and Nat ional Law (Hans
Christian Bug ge & Christina Voigt, eds. Europa 2008) and Routledge Hand-
book of Internation al Law (David Armstrong, ed. Routledge 2009), and builds
on her previous work with Ashfaq Khalfan in Sustainable Development Law:
Principles, Practices and Prospects (Oxford University Press 2004). She grate-
fully thanks and acknowledge s the insights and assistance of Alexandra Har-
rington, Seni or Manager of CISDL and Doctor of Civil Law candidate at the
McGill University Faculty of Law.
5SUSTAINABLE DEVELOPMENT LAW & POLICY
a common concept of sustainable development, identified priori-
ties for sustainable development, and found certain elements of
consensus on how these priorities can and should be addressed
at different levels through policy and even law. Second, it argues
that through the negotiation and implementation of international
treaties on susta inable development, Sta tes s eek to a ddress
specific sustainability challenges related to economic, environ-
mental, and also social aspects of development, partly through
the adoptio n of certain operational principles in the context of
treaty regimes. Finally, it argues that through the peaceful settle-
ment of d isputes related to sustainable development, States are
starting to gain valuable guidance from international courts and
tribunals on how it is possible to resolve particular transbound-
ary problems that invoke a need to balance environmental, eco-
nomic, and social development priorities.
THE ROLE OF INTERNATIONAL FORUMS IN THE
ADVANCEMENT OF SUSTAINABLE DEVELOPMENT
The following sections analyze the role o f intern ational
forums in the advancement of sustainabl e development by dis-
cussing the progress of soft law
in the policy-maki ng context,
progre ss in the treaty m aking
conte xt, a nd pro gress in the
realm of treaty regimes as shown
by tribunal decisions.
progreSS in “Soft law
policy-maKing proceSSeS:
framing the DebateS
The term sustainable devel-
opment, which may have been
first coined in European forestry
laws of the 18th century,6 gained
recognit ion a t th e glo bal l evel
in the 1970s and 1980s. In 1972, the United Nations call ed an
internation al Confere nce on the Human Envir onment, wh ich
led to the Stockholm Declaration on the Human Environment,7
the creation of the UN Environment Programme, and increased
impetus to agree on certain multilateral environmental agree-
ments such as t he 1973 Co nvention on International Trad e in
Endangered Species.8
In the 1980 World Conse rvation Strate gy of the Interna-
tional Union for the Conserva tion of Nature (“IUCN”), sus-
tainable develo pment is defi ned as “the modifica tion o f the
biosphere and the application of human, financial, living an d
non-living resources to satisfy human need s and improve the
quality of human life.”9 In 1982, the World Charter for Nature
was adopted by the UN General Assembly, calling for “optimum
sustainabl e producti vity,” and affirming that in “ formulating
long-term plans for economic development, population growth
and the improvement of standards of living, due account shall be
taken of the long-term capacity of natural systems to ensure the
subsistence and settlement of the populations concerned, recog-
nizing that this capacity may be enhanced through science and
technology.”10
In 1983, after a decade of incr easingly heated debate s
between developed an d developing countries on environmental
limits to development, the UN General Assembly establis hed
the World Commission on the Environment and Development
(“WCED”).11 The WCED, chaired by Prime Minister Gro Har-
lem Brundtland of Norway, embarked on a glo bal ser ies of
consultation s. In 1987, it delivered its R eport to the Ge neral
Assembly, Our Common Future.12 The most generally accepted
definition of sustainable development is found in this “Brundt-
land Report” where it is defined as “…development that meets
the needs of the prese nt without compromising the abilit y of
future generations to meet their own needs.”13 The Repo rt was
accepted by the Ge neral Assembly in Resolution 42/187. The
Resolution differentiates between the objective of sustainable
developme nt and the objective of environmen tal pro tection,
though it considers them linked. The Resolution tasks the UN
Economic and Social Council, o ther development institutions
of the UN, and economic ministries with reorienta tion toward
sustainable development, focusing on “needs,” especially the
essential needs of the world’s poor, to which overriding priority
should be given.
In 1992 , in respo nse to
the Brun dtland Re port, the
Unit ed N ations conve ned a
globa l confere nce in R io de
Janei ro—the UN Conferenc e
on Environment and Dev elop-
ment (“UNC ED,” or the “Rio
Earth Summit”).14 The UNCED
focused on development needs
and on h ow to integrate envi-
ronment al consideration s i nto
dev elopm ent p lanni ng and
economic decision-making. At
the time, developed country leaders were anxious to show their
political concern, and developing country leaders were increas-
ingly frustrated wi th what was perceived as at tempts to limit
their sovereign decisions concerning the use of natural resources
for development. Ultimately, the UNC ED was broadly viewe d
as a gl obal success, with spec ific outcomes including t he 1992
Rio Declaration on Environment and Development, which lays
out ce rtain principles, and the 1992 Agenda 21, which serves
as a “blueprint” to halt and reverse t he effects of environmen-
tal degr adation and to promote sustainab le development in all
countries.15 The text of Agenda 21 comprises a preamble a nd
four sections entitled: Social and Economic Dimensions,16 Con-
servation and Management of Resou rces for Development,17
Strengthening the Role of Major Groups,18 and Means of Imple-
mentation.19 Agenda 21 also noted in several places, as a means
of implementation of sustainable develo pment, the need for
international action to codify and develop “international law on
sustainable development.”20 Indeed, the UNCED process led to
three i nternational treaties: the 1992 UN Framework Conven-
tion on Climate Change (“UNFCCC”),21 the 1992 UN Conven-
tion o n Biological Diversity (“UNCBD”) ,22 and the 1994 UN
International
understanding of both
sustainability and
development has evolved
a great deal in recent
decades
6FALL 2009
Conventi on t o Co mbat Desertification (“UNCCD”).23 Aft er
the U NCED, a U N Commission on Sustainable Development
(“UNCSD”) was establish ed unde r the UN’s Economic and
Social authority, to annually review progress in implementation
of Agenda 21.
In 1997, a special session of the UN General Assembly, the
“Earth Su mmit+5,” was held in New York to review progress
toward the obj ectives set in Rio. The resulting Declaration, the
Programme of Further Action to Implement Agenda 21, focused
on as sessing progress since Rio and calling attention to areas
where implementation of Agenda 21 recommendations was fal-
tering, highlighting the need to furthe r strengthen and cod ify
international law on sustainable development.24 The UNC SD
continued to meet annually from 1997 to 2002. States also held
further global summits, adopting non-bi nding policy outcomes
identifying p oints of global consensus on sustainab le develop-
ment issues and undertaking a series of legally binding negotia-
tions on specific sustainable development challenges.
The 2002 Worl d S ummit on Sustainabl e Development
(“WSSD”) in J ohannesburg sought to reinvigorate global com-
mitment to sustainable development,25 focusing on how best to
implement sustainable d evelopment in a context of globaliza -
tion. Th e WSSD resulted in a 2 002 Johannesburg Declaration
on Sustainable Development and a Johannesburg Plan of Imple-
mentation. The Johannesburg Declaration, rather than laying out
principles like the Declarations from Stockholm and Rio, pro-
vides a political commitment to sustainable development from
heads of State.26 The 20 02 Johannesburg Plan of Implementa-
tion (“JPOI”) provides a framework for action to implement the
commitments originally agreed at UNCED and to address a few
additional challenges.27 New resources were co mmitted to the
Global E nvironment Facility, and States agreed that efforts to
address desertification would be henceforth funded by the GEF
as a new focal area. A commitment was also made to negotiate a
new binding regime on access and benefit sharing for biodiver-
sity, under the UNCBD. Specific attention was focused on cer-
tain important priorities identified by the UN Secretary General,
in the areas of water and sanitation, energy, health, agriculture
and biodi versity (the so-cal led “WEHAB” issues ). By the end
of the WSSD, a number of the WEHAB commitments set out in
the JPOI had been linked to new “volunt ary” partnerships and
financial commitments. Johannesbu rg witnessed th e launch of
180 “Type II Outcomes.” These were specific sustainable devel-
opment partnerships between gove rnments, civil society, and
industry, agreed to under the auspices of the WSSD process and
supported by the UNCSD, to achieve a set of measurable objec-
tives and results focused on the implementation of sustainable
development in specific areas. The WSSD process set in place a
broadened institutional architecture for sustainable development
to further implement Agenda 2 1 and the WSSD outcomes and
to meet emerging sust ainable development challenges.28 JPOI
Chapter XI lays out a multi-tiered international architecture for
sustainable development governance.
In su m, there fore, o ver the past thirty years, there has
been an ex tensive policy-making process relate d to sustainable
development, including the d ebates and outcome s of the 1992
Rio UNCE D, the 1997 New Yo rk UN General As sembly
Special S ession known as the Earth Summit +5, and the 2002
Johannesburg WSSD.29 The debates helped to refine a common
concept of sustainable development among States. For instance,
in the Johannesburg Declaration, States “assume[d] a collective
responsibility to advance and strengthen the interdependent and
mutually reinforcing pillars of sustainable development—eco-
nomic develop ment, social development and envi ronmental
protection—at the local, national, regional and global levels.”30
Championed by the South African hosts an d others, the social
agenda in sustainable development was deeply emphasized. By
the en d of 2002, sustainable development was accepted as an
important objective not only for bringing economic and environ-
mental authorities together, but also for those addressing health,
indigenous peoples’ rights, gender, and other social i ssues.31
In addition, the process identified certa in priority areas of con-
sensus in State policy-making and cooperation. F or instance,
specific targets were a greed in the JPOI that built on th e Mil-
lennium De velopment Goals the mselves, and new partn er-
ships were launched to work towards achieving the targets. The
global debates also identified areas where existing economic,
environmental, and social development treaties could be refined
to better addr ess sustainab le developme nt objectives , or new
agreements negotiated. For instance, as noted above, in the Rio
process three importan t international accords addressing both
environme ntal an d susta inable development objectives were
signed, with several others negotiated soon afterwards. Further-
more, as disc ussed below, in the Johann esburg process, certain
emerging principles of international law on sustainable develop-
ment were openly debated, such as common but differentiated
responsibility, pr ecaution, sustainable use of natural resources,
equity, integration, and openness, transparency, and public par-
ticipation.32 Unl ike international treaties, or clearly recognized
international customary law, the 1992 Rio Declaration and the
Agenda 21, along with the 2002 Johannesburg Declaration and
Johannesburg Plan of Implementation are not bindin g. Rather,
such consensus declarations by States are usually described as
“soft law.”33 UN General Assembly resolutions, while they can
be considered evidence of an emerging customary principle and
while they can re flect treaty law, are si milarly not considered
legally binding as such. However, this does not mean that such
consensus declarations of States are without legal relevance.
Indeed, “soft law ” dec larations may give rise to legitimate
expectations, in that States, assumed to be acting in good faith
when th ey agree to such statements, might be precluded from
deliberately violating agreements or commitments assumed in
soft law without notice or a least assumed to be acting in accord-
ance with such commitments.34 In a related m anner, “soft law”
can provide evidence of emerging customary norms.35 Though
they may not provide a solid basis for robust legal analysis, the
global “soft law” debates on sustainable development do appear
to play a key role in building consensus around certain priorities
and principles, and in identifying and building alliances for new
areas of treaty-making on sustainable development.
7SUSTAINABLE DEVELOPMENT LAW & POLICY
progreSS in treaty negotiation: Setting
SuStainable Development obJectiveS
Unlike in the 1992 R io Earth Summit, t he Johannesburg
Summit process di d not produce new treaties. Instead, in the
JPOI, States specific ally h ighlighted over 60 existing inter-
national economic, environmental, and social instruments that
play a role achieving su stainable development, and mentioned
more t han 200 ot hers.36 Essentially, sustainable development,
once almost margi nalized as a secon d or third object ive of a
few international environmental accords, came to be recognized
as a key purp ose of m any important treaties and instruments,
including specialized regimes f or sustainable management of
resources such as seeds, fisheries, and fo rests. O ne of these
treatie s even provides an agr eed
definition of sustainable devel-
opment.37 While the conc ept of
sustai nable deve lopment, l ike
develop ment (or world peace,
or huma n righ ts), m ay hav e
no single simple ac cepted uni -
versal definition , this does not
require that the meaning of sus-
tainable development must also
remain unclear in int ernational
treaty law. Dif ferent tre aties,
establi shed to address distinc t
problems, usually specify what
Sta tes me an by s ustain able
development in the accord itself,
either in the prea mble or in the
operational principles , and this
infor ms the spec ific mecha n-
isms adopt ed, the manne r of
implemen tation, the resolution
of related disputes, and often the
further evolution of the regime.
One of th e most s ignifi-
cant of these treaties is the UN
Framework Convention on Cli-
mat e C hange (“U NFCCC” ).
Thi s tre aty reco gnizes tha t
the climate system is a shared resource whose stability can be
affected by industrial and other emissions of carbon dioxide and
other greenhouse gases, and sets an overall framework for inter-
governmental effort s to tackle the challenges posed by climate
change. In the UNFCCC, the promotion of sustainable develop-
ment is framed as one of the “Principles” of the treaty, where it
is described as a “right.” The provision is also, however, framed
as a hort atory (“s hould” ra ther than “shall”) commitme nt to
“promote.”38 In this context, it can be noted that Principle 4 of
the UNFCC C is provided as a disti nct norm from Principle 1,
which states in part “[t]he Parties should protect the climate sys-
tem for the benefit of present and future generations of human-
kind, on the basis of equity . . . .” It is also distinct from Principle
5, which state s that “. . . Parties should cooperate to promote a
supportive and open international economic system that would
lead to sust ainable ec onomic grow th and development in all
Parties, particularly devel oping country Parties, thus enabling
them better to address the problems of climate change. . . .” As
such, it would appear that, while UNFC CC Principle 4 recog-
nizes a right and (hortatory) duty of States to promote sustain-
able deve lopment, this does not imply either intergenerationa l
equity or a “new kind of economic growth,” as both of these are
recognized a s separate principles. Rather, the r ight to promote
sustainable development appears to refer more directly to the
work of the Parties to integrate en vironmental protection with
development processes. Further, in spite of the Principle s dis-
cussed above, an operational reference to sustainable develop-
ment is also found in Article 2. As
such, while i t could be arg ued
that the “right to promote sus-
tainable development” is recog-
nized as a Principle by States in
the co ntext of th e UNFCCC, it
also seems that stabilization o f
greenhouse gas reduction levels
“should” be achieved within a
time-frame sufficient to “enable
economic development to p ro-
ceed in a sustainable manner”—
essentially, an objective. At the
first Conference of the Parties
(1995), in the Berlin Mandate,
Parties launched intense negoti-
ations that resulted in the Kyoto
Proto col39 on Decem ber 11 ,
1997. The 1997 Kyoto Proto-
col shares UNFCCC objectives,
principles, and institut ions, but
commits Annex I Parties to indi-
vidual, legall y bind ing t argets
to limit or redu ce their green-
house ga s emissions. In c on-
trast to the UNFCCC, the Kyoto
Protoco l m entions sustainab le
development as an obj ective in
an extremel y clear way. Indeed, it
provides quite a s olid definition of the ty pes of measu res that
States can take “in order to promote sustainable development” in
the area of climate change.40
A second r elevant t reaty is the 1994 U N Convent ion to
Combat Desertification (“UNCCD”), especially in Africa, which
built on the Plan of Action to Combat Desertification from the
1977 UN Conference on Desertification to address land degrada-
tion in arid, semi-arid, and dry sub-humid areas. In Article 3 on
Principles, the Parties commit to cooperate to work towards the
sustainable use of land and water resources. But in the UNCCD
States make over forty references to “sustainable” development,
use, management, exploitation, production, and practices and/or
unsustainable development and exploitation practices. As such,
It is possible that
international courts
and tribunals . . .
are becoming more
willing to go beyond
a simple “balance”
of environmental
and economic
concerns, towards
actual integration of
environmental, economic
and social considerations
in development
8FALL 2009
while “sustainable use” is set as a Principle in Article 3, States
also clearly incorporated sustainable development as an “Objec-
tive” of the UNCCD, speaking both to their intention that an
integrated approach will “contribute to the achievement of sus-
tainable development” in particular areas, and that the adoption
of integrated strategies will focus on “sustainable management
of land and water resources” leading to “improved living condi-
tions.”41 In the UNCCD States essentially seek to s pecify how
this objective will be realized, through action plans and regional
annexes, each of which refers to sus tainable de velopment i n
slightly different (regionally appropriate) lights.
In a third example, 190 countries have ra tified the 1992
UN Convention on Biol ogical Div ersity (“UNCBD”), which
covers all ecosystems, species, a nd genetic resources, and rec-
ognizes that t he conservation of biological diversity is “a com-
mon concern of humankind” while also noting that sustainable
use of biodi versity is an integral part of the development proc-
ess. In essence, in the tr eaty States
link tr adition al c onserv ation
effor ts to th e econom ic goal
of us ing biolo gical res ources
sustainabl y. The UNCBD con-
tains principles for the fair and
equitable sharing of the benefits
arising from the sustainable use
of genetic resources, including
genetic re sources destined fo r
commercial use. The treaty also
cover s the rap idly expan ding
field of biotechnology, addres s-
ing technology development and
trans fer, b enefit-s haring, and
biosafety. The UNCB D regime
agrees on m easures and incen-
tives for the conser vation and
sustainable use of biological diversity; regulated access to genetic
resources; acc ess to and transf er of technology (including bio-
technology); technical and scientific cooperation; impact assess-
ment; education and public awareness; provision of financial
resources; and national reporting on efforts to implement treaty
commitments. In the UNCBD, States recognize “that e cosys-
tems, species and genes must be used for the benefit of humans.
However, this should be done in a way and at a rate that does not
lead to the long-term decline of biological diversity.” Indeed, in
Article 2, States define sustainable use as “the use of components
of biological diversity in a way and at a rate that does not lead to
the long-term decline of biological diversity, thereby maintain-
ing its potential to meet the needs and aspirations of present and
future generations.”42 As such, in the UNCBD, States appear not
only to clearly adopt sustainable use of biological diversity as a
treaty objective, but also to define fairly precisely what is meant
by sustainable use, and what types of measures and activities are
needed to ensure that use is, indeed, sustainable in the context of
biological resources. On January 29, 2000, the Conference of the
Parties of the UNCBD adopted a supplementary instrument, the
2000 Ca rtagena Protocol on Biosafety. In the Pro tocol, States
seek to protect biological diversity from the potential risks posed
by living modified organisms resulting from modern biotechnol-
ogy. They establish an ad vance informed agreement (“AIA”)
procedure for ensuring that countri es are provi ded wit h the
information necessary to make informed decisions before agree-
ing to the import of such organisms into their territory. They also
establish a Biosafety Clearing-House to facili tate the exchange
of information on living modified organisms and to assist coun-
tries in the imp lementation of the Protocol. Overall, there are
more than twenty references to “sustainability” in this Protocol,
each specific to the actual resource being managed. “Sustainable
use” is seen as an objective of the Protocol, an d is considered
relevant to social and e conomic (not just env ironmental) pri -
orities such as the needs of indigenous and local communities.
This highlights the point raised earlier, that there are important
social and econ omic dimensi ons to sustainable development.
Susta inable de velopment, as an
objective of international treaty
law, cannot simply be conflated
with environm ental protection
in developing countries.
The commitment “to pro-
mote sus tainable development”
has not just been made in mul-
tilate ral environme ntal agree-
ments. In the preparation s for
the 2002 Johannesburg Summit,
after s even years o f negotia-
tions, the Food and Agriculture
Orga nizatio n ( “FAO”) Con-
fere nce (th rough Re solutio n
3/200 1) adopte d the Int erna-
tional Treaty on Plan t Genetic
Resources for Food and Agri-
culture43 (“ Seed Treaty”) in No vember 2001. The S eed Treaty
covers all plant genetic resources relevant for food and agricul-
ture and is vital in ensuring the continued availability of the plant
genetic resources that countries will need to feed their people. In
the Seed Treaty, States seek t o conserve for future generations
the gen etic diversity that is essen tial for food and agricultu re.
Plant genet ic resources for food and agricult ure are defined as
“any genetic material of plant origin of actual or potential value
for food and agriculture.” The treaty objectives are the conser-
vation and sustainable use of p lant genetic resources for food
and agriculture and the fair and equitable sharing o f benefits
derived from their use, in harmony with the UNCBD, for sus-
tainable agriculture and food security. In the Seed Treaty, States
establish a Multilateral System for Access and Benefit-Sharing
that is meant to provide an efficient, effective and transparent
framework to facilitate access to plant genetic resources for food
and agriculture, and to share the benefits in a fair and equitable
way. Th is Multilateral System applies to over 64 major c rops
and forages. The Governing Body of the treaty sets out the con-
ditions for access and bene fit-sharing in a “Materi al Transfer
The process of identifying
principles of international
law and policy related to
sustainable development
has been reasonably
complex
9SUSTAINABLE DEVELOPMENT LAW & POLICY
Agreement.” Res ources may be obtai ned from the Multil ateral
System for utiliza tion and conservation in research , breeding
and training. When a commer cial product is develop ed using
these resources, the Treaty provides for payment of an equitable
share of the resulting monetary benefits, with the condition that
the use of the prod uct may not be restricted a nd the seed may
be used f or further research and breeding. If others may use it,
payment is voluntary. The Seed Treaty provides for sharing the
benefits of using plant genetic resource s for food and agricul-
ture through information exchange, access to and the t ransfer
of t echnology, and capacity-building. Under the Seed Tre aty,
a fu nding strategy was also established to mobilize funds for
activities, plans, and programs to help small farmers in develop-
ing count ries. This fundi ng strategy also includes the share of
the monetary benefits paid under the Multilateral System. There
are twenty-four references to “sustainable” agricultural develop-
ment, use, and systems in the FAO Seed Treaty. Sustainable use
of genetic resources is clearly recognized as an “Objective” of
the treaty. But in Article 6.1, the Contracting Parties also accept
a duty. States “shall develop and maintain appropriate policy and
legal measures that promote the sustainable use of plant genetic
resources for food and agriculture.” In Article 6.2, the Parties
identify s even specific such measures, including “(a) pursuing
fair agricultural policies that . . . enhance the sustainable use of
agricultural biological diversity and other natural resources; (b)
strengthening research which enha nces and conserves biologi-
cal di versity by maximizing intra- and inter-spe cific variation
for the benefit of farmers . . . (d) broadening the genetic base
of c rops . . . (e ) promoting, as appropri ate, the expanded use
of loca l and locally adapted crop s, varieties and underutilized
species; (f) supporting . . . sustainable use of crops and creating
strong li nks to plant breeding and agricultural development in
order to . . . promote increased world food production compati-
ble with sustainable development . . . .” This is important for two
reasons. First, the Seed Treaty is a recent instrument, and there-
fore of fers an insigh t into States’ most current conceptions o f
sustainability as an economic, social and environmental objec-
tive that can be opera tionalized. Sec ond, in the treaty, States
focus on “sustainable use” in one particular context, that of plant
genetic resources for food and agriculture. In this specific sector,
it appea rs possible t o pinpoint fai rly precisely the meaning of
sustainable use of the resource, and the type of measures that are
required to ensure that it takes place.
Furtherm ore, i n seve ral im portant trade and investment
treaties States have also underlined a commitment to sustainable
development, one that has been interpreted by decisions of the
Appellate Body of the World Trade Organization (“WTO”) and
other economic tribunals.44 The negotiation of the Preamble of
the 1994 WTO Agreement w as influenced by the outcomes of
the 1992 UNCED, as was made explicit in the Uruguay Round
Decision on T rade and Environment which noted the Rio Dec-
laration, Agenda 21, and the General Agreement on Tariffs
and Trade (“GATT”) follow-up process.45 The Preamble of the
WTO Agreement states that:
Recognizing that their relations in the field of trade and
economic endeavour should be conducted with a view
to raising standards of living, ensuring full employment
and a large and steadily growing volume of real income
and effective demand, and e xpanding the production
of and trade in goods and services, while allowing for
the optimal use of the world’s resources in accordance
with the objective of sustainable development, seeking
both to protect and preserve the environment and t o
enhance the means for doing so in a manner consistent
with their respecti ve needs and concerns at d ifferent
levels of economic development . . .
Recogni zing further th at there is need for positive
efforts designed to ensure that devel oping countrie s,
and especially the least developed among them, secure
a share in the growth in international trade commensu-
rate with the needs of their economic development.46
While Preambular statements are not formally legally bind-
ing in the same way that operational provisions can be, they can
play a role in interpretation of a treaty, particularly in identifica-
tion of the treaty’s object and purpose.47 Nearly eight years after
the WTO Agreement was adopted in Punta del Este in 1994, the
importance of a sustainable development objective to the WTO
was underscored, after debates, in the 2001 Doha WTO Ministe-
rial Declaration at paragraph 6 which states:
We strongly reaffirm our commitmen t to the objective
of sustaina ble development, as stated in the Preamble
to t he Marrakesh Agreement. We are convinced that
the a ims of up holding and safeguarding an open and
non-disc riminatory multilater al tr ading system, and
acting for the protection of the environment and th e
promotion of su stainable deve lopment can and must
be mutually supportive . . . . W e encourage efforts to
promote cooperation b etween the WTO and relevant
international environmental and developmental organi-
zations, especially in the lead-up to the World Summit
on S ustainable Develop ment to be held in Johannes-
burg, South Africa, in September 2002.48
It can be argued that in Doha, Ministers recognized sustain-
able development as an objective of the WTO, and placed it into
a strengthen ed context, referring to practical meas ures such as
the need for cooperation in other international environment and
development organizations. Reference s to this objective in th e
Doha Min isterial Declaration clearly recognize environmental
protection and social development as elements that need to be
integrated into the mandate of a mainly economic organization,
the WTO. The Ministerial Declaration also contains, in particu-
lar, several substantive provisions showing that a commitment
to sustainable development provided real guidance for the Min-
isters’ decisions. Indeed, after 2001, the WTO, as an institution,
moved more quickly to recognize sustainable development and
its normative nature. As noted by WTO Director General Pascal
Lamy, the objective of sustainable development mandates WTO
members “to no longer compartmentalize [their] work; discuss-
ing environmental and developmental issues in isolation of the
10FALL 2009
rest of what [they] do. These are issues that permeate all areas
of the WTO.”49 Similarly, the 1994 North American Free Trade
Agreement (“NAFTA ”), and most internatio nal trad e agree -
ments signed by Canada, the United Stat es, or the Eu ropean
Union since the 1992 Rio Earth Summit, contain assurances that
States, in signing these regional trade and investment accords,
seek to promote sustainable dev elopment (North American bi-
lateral trade and investment trea ties), or plan to carry out their
treaty co mmitments in accor dance with a principle of sustain-
able development (European economic as sociation agreements
and trade accords).50
progreSS in treaty regimeS: operationaliZing
SuStainable Development principleS
These last three decades of policy-making and treaty nego-
tiations have reinforced international recognition of certain key
principle s rela ted to susta inable development, includin g the
principles of integration , sustainable use of natural resources,
and equity, as well as principles of c ommon but differentiate d
respons ibility, precauti on, good governance, an d o penness,
transparency, a nd public participation.51 They also highlighted
the emergence and refinement of international instruments an d
techniques to put these principles into practice. As was predicted
in the Annex on Legal Principles to the Brundtland Report,52 a
body of rules of international law related to sustainable develop-
ment i s emerging, m ainly through the adoption of “hard law”
treaty regimes. When States set sustainable development as a
policy objective of an international treaty, they also adopt certain
norms to real ize their joint purpose. F or example, the principle
of common but differentiated responsibilities governs the way
that burdens to reduce greenhouse gases are apportioned among
States, serving the sustainable economic development objective
of the 1992 UNFCCC.53 Such principles whic h aim to contrib-
ute to and achieve sustainable development may even come to
be used so often, and to be accepted so generally, that they do,
indeed, gain recognition as customary international rules them-
selves, binding on all States that have not persistently objected.
Existing un iversal adoption of these principles to address spe -
cific international issues, moreover, might support a contention
that in these contexts ( climate change, biodiversity, desertifi-
cation, law of the sea), ce rtain principles have already reached
such a status. The practical implication s of such a contention,
in some n early universal membership treat ies, which explicitly
commit to these pr inciples, might be minimal, but it does not
discount the value of examining the principles themselves.
The pr ocess of i dentifying principle s of inter national law
and policy related to sustainable development has been reason-
ably complex. The most important u ndertakings ran parallel t o
the glo bal policy-making events outlined above, and included
the process of elaborating the 1972 Stockholm Declaration, the
1987 Brundtland Commission’s Legal Experts Group on Princi-
ples of International Law for the Protection of the Environment
and Sustainable Development, the 1992 Rio Declaration, the
2002 New Delhi Declaration of the International Law Associa-
tion, and other efforts. The 1992 Rio Declaration echoes many
of the Principles recommended by the Brundtland Report, and
was clearly directly influenced by its findings. Widely accepted
as “soft law,”54 the centra l concept of the 1992 Rio Declara-
tion is sustainable development, as defined by the Brundtland
Report. The Rio Declaration was followed by the Report of the
Expert Gro up Meeting on Identification of Principles of Inter -
national Law for Sustaina ble Developm ent, which was com-
missioned by the UN Division for Sustainable Development
in accordance with a request by Stat es at the second session of
the UN Commission on Sustainable Development in 1994, and
released in September 1995.55 This early Report identifies nine-
teen principles and concepts of international law for sustainable
development but did not resolve international debates on these
questions.
In 1997, States noted in the Programme of Action for Further
Implementation of Agenda 21 that “[p]rogress has been made in
incorporating the principles contained in the Rio Declaration on
Environment and Development . . . including the principle of
common but differentiated responsibilities . . . [and] the precau-
tionary p rinciple . . . in a variety of international and national
legal instru ments . . . much remains to be done to embody the
Rio principles more firmly in law and practice.”56 As a Resolu-
tion of the 70th Conference of the International Law Association
(“ILA”) in New Delhi India, April 2-6, 2002, the Committee
on the Legal Aspects of Sustainable Development released its
New Delhi ILA Declaration on Principles of International Law
relating to Sustainable Development.57 It outlines seven prin-
ciples of international law on s ustainable development. These
principles are cen tral principle s of most internati onal treaties
related to sustainable development, and are recognized and reaf-
firmed throughout the 2002 Johannesburg Plan of Implementa-
tion. Detailed analysis is beyond the scope of this article and can
be found e lsewhere.58 However, given the decade of study and
analysis conducted by the Committee and the relative normative
clarity of their findings , the 2002 New Delhi Declaration pro-
vides a current benchmark of the important principles of interna-
tional law on sustainable development.59 As such, a short survey
is provided below.
The New Delhi Declaration starts by recognizing the need
to fur ther develop international law in the field of sust ainable
development, with a view to according due weight to both the
developmental and environmental concerns, in order to achieve
a balanced and comprehensive international law on sustainable
development, as called for in Principle 27 of the Rio Declaration
and Chapter 39 of Agenda 21 of the UNCED. Then, seven “prin-
ciples” are highlighted.
The first evokes a duty of states to ensure sustainable use of
natural resources. States have sovereign rights over their natural
resources, and a duty not to cause (or al low) undue damage to
the en vironment of other States in the use of these resources.
As discussed above, this principle was recognized in Stockholm
Declaration Principle 21 and the Rio Declaration Principle 2.60
Though a comp rehensive re view is beyond the scope of this
article, it should be noted that this principle has been reflected
and strong ly reaffirmed in severa l i nternational tre aties on
11 SUSTAINABLE DEVELOPMENT LAW & POLICY
sustainable development with extremely broad m embership in
the past two decades. In the UNFCCC, at the Preamble, Parties
recognize the rights of sovereignty over natural resour ces and
related responsibilities to prote ct the world’s clima te system.
Similar recognition is found i n the Pr eamble of the UNCBD,
and is highlighted as a principle of sustainable use of biological
resources in Article 3 and Article 10.61 Similarly, in the UNCCD,
at Article 3(c), Parties agree on a principle to work toward sus-
tainable use of scarce water and land resources, and, in Article
10.4 on national action plans, Article 11 on regional and sub-
regional actio ns, Article 17.1(a) on research and development,
and Art 19.1(c) and (e) on c apacity-building, the principl e is
reaffirme d.62 The WTO Agree-
ment a lso recognizes, in its Pre-
amble, the need to ensure optimal
use of the w orld’s resources in
accordance with the objective of
sustaina ble development.63 The
FAO Seed Treaty, at Article 1.1,
sets the conservation and sustain-
able u se of plant genetic reso ur-
ces for food an d agri culture,
making the commitm ent oper-
ational in Article 6 which lays out
a series of specific law and policy
measures that States should adopt
to ensure sustainable use of plant
genetic resources.64
The s econd prin ciple o f
equity a nd poverty erad ication
refers to both inter-generational
equity (a right of f uture genera-
tions to enjoy a fair level of the
common patr imony) and intra-
generational equity (a right of all
peoples within the current gen-
eration of fair access to the cur-
rent generation ’s enti tlement to
the Earth’s natural re sources).65
According to the New Delhi Declaration, the principle of equity
includes a duty to cooperate to secure development opportuni-
ties o f developed and developing countries, and a duty to co-
operate for the eradication of poverty, as noted in Chapter IX on
International Economic and Social Co-operation of the Charter
of the United Nations.66 This principle is also reflected in inter-
national treaty law on sustainable development. In the UNCBD,
the principle is reflected in Article 15.7 on access to the bene-
fits of biological resources and related obligations to ensure that
the benefits are equitably shared.67 In the Preamble of the 1992
UNFCCC, Parties commit to take into full account the legitimate
priority needs of developing countri es for the achievement of
sustained economic growth and the eradication of poverty, while
also noting their determination to protect the climate system for
present and future generations. Indeed, one of the treaty princi-
ples in Article 3 states an intention to “protect the climate system
for the benefit of present and future generations of humankind,
on the basis of equity” and commits that accordingly, “devel-
oped country Parties should take the lead in combating climate
change.”68 In the UNCCD, Parties included provisions on pov-
erty eradication and intra-generational equity at Article 16(g) on
the sharing of traditional knowledge shar ing, at Article 17.1(c)
on resear ch and development r elated to traditio nal knowl-
edge, and in Article 18.2(b) on t echnology transfer.69 Further,
a responsibilit y for inter-g enerational and intra-generati onal
equity in sharing the benefits of plant genetic resources is rec -
ognized in t he Preamble of the FAO Seed Treaty, as well as at
Article 1.1 as an objective of access and benefit-sharing provi-
sions, and Articles 1 0, 11, 12,
and 13 whi ch operationa lize
the prin ciple by establ ishing a
multilat eral system of access
and benefit shar ing for plant
genetic resources.70
The thi rd principle c on-
cerned the common but differ-
entiated obligations of States in
securing sustaina ble deve lop-
ment. Accord ing to t he N ew
Delhi De claration, thi s prin-
ciple holds that the com mon
responsibility of state s for the
protection of the environment
at the national, regional , and
global levels shall be balanced
by the need to take account of
differ ent circumsta nces, par-
ticul arly in re lation to each
state’s histo rical contribution
to the creati on of a parti cular
problem, as well as its ability
to prevent, reduce, and control
the threat.71 This principle is
reflected in the UNFCCC at its
Preamble, as well as in Article
3 on Principle s and Article 4 on commitments, which est ab-
lishes the differentiated obligations of Annex 1 and non-Annex
1 Parties.72 Parties also a ffirm and operationalize the principle
in the Kyoto Protocol at Article 10, which recognizes common
but differentiated responsibilities to establi sh inventories and
programmes to abate greenhouse gas emissions, and Article
12, which operationalizes the principle by establishing a Clean
Development Mechanism to help cover the costs of low emis-
sion technologies and energy s ystems.73 The principle is also
prominent in the UNCCD, wh ere Parties reaffirm, in Article 3
on principles, the need to respect the common but differentiated
responsibilities of States, in Articles 4 through 6, which lay out
the obligations for affected and developed country Parties, and
in Article 7, which includes specific provisions for Africa.74 The
principle is reaffirmed and made operational in the FAO Seed
Treaty at Article 7.2(a), which provides for developing country’s
As a general principle,
international forums
have contributed to the
growth and expansion of
sustainable development
by providing a space
within which State and
non-state actors may
come together for a
collective discussion
of their sustainability-
related challenges
12FALL 2009
different capabilities, at Article 8 which commits to technica l
assistance, at Article 15.1(b)(iii) which grants special benefits
to least developed countries and to centers of diversity, and in
Article 18.4(d) on financing implementation of the treaty.75
The fourth was the principle of the precautionary approach
to human health, natural resources , and ecosys tems, in that
where ther e are threats of serious o r irreversible dam age, lack
of full scientific certainty shall not be used as a reason for post-
poning cost-effective meas ures to pr event degradation.76 This
principle is reflected in UNCBD in its Preamble, and made oper-
ational through Article 14.1(b), which address es likely adverse
impacts and Article 8(g) on transboundary movement of living
modified organisms (“LMOs”) .77 It is also central to the Carta-
gena Protocol on Biosafety, both through explicit reaffirmation
of t he principle in its Preamble, at Article 1 that lays out the
precautionary objective of the Protocol, and in the way that it
is operationalized at Article 7 on advanced informed agreement
requirements that must be fulfilled prior to the first transbound-
ary movement of an LMO, at Article 10.6 with regards the deci-
sion-making procedures that will be followed in implementation
of the Protocol, at Article 11.8 which establishes simplified pro-
cedures for LMOs destined for food, feed, and processing uses,
at Article 15 on risk assessment which references Annex III.4, in
which precautio nary decision-making is explicitly permitted.78
Precaution also appears in the UNFCCC at Article 3 as a Prin-
ciple of the treaty.79 The precaut ionary principle is reflected in
the design of 1998 Rotterdam Convention on the Prior Informed
Consent Pro cedure for Certain Hazardous Chemicals and Pes-
ticides in International Trade, which requires exporte rs of cer-
tain hazardous substances to obtain the prior informed consent
of import ers before procee ding, and accepts p recautionary
measures by Parties in Article 14(3) and the Annex V on infor-
mation exchange.80 Th e 2001 Stockholm Conven tion on Per-
sistent O rganic Pollutants also acknowledges, at its Prea mble,
that “precaution underlies the concerns of all the Parties and is
embedded within this Convention.” At Article 1, Parties note
that they are mindful of the precautionary approach as set forth
in Principle 15 of the Rio Declara tion in setting their objective
to protect human health and the environment from pers istent
organic pollutants. Article 8 makes precaution an operative pri-
ority; Parties agree to use “a precautionary manner” when decid-
ing which chemicals to list in the Annexes of the Convention,
where lack of full scientific certainty shall not prevent a proposal
to list from proceeding. Further, Part V(B) of Annex C speci-
fies that “precaution and prevention” should be considered when
determining the best a vailable techniques. In the 1 995 Agree-
ment for t he Implementation of the Provisions of the UN Con-
vention on the Law of the Sea of Dece mber 10, 1982, re lating
to the Conservation and Management of Straddling Fish Stocks
and Highly Migratory Fish Stocks at Article 6, Parties agree that
“[s]tates shall apply the precautionary approach widely to con-
servation, management and exploitation of straddling fish stocks
and highly migrat ory fish stocks… Sta tes shall be more cau-
tious when information is uncertain, unreliable, or inadequate.
The absence of adequate scientific information shall not be used
as a reason for postponing or failing to take conservation and
management measures.” And according to the WTO Appellate
Body, the WTO Agreement on the Application of Sanitary and
PhytoSanitary Measures, enshrines the precautionary principle
in Article 5.7 which permits provisional measures to be taken to
restrict trade where scientific data is uncertain, though this does
not exhaust its relevance in WTO law.81
The fifth is a principle of public participation and access
to in formation and justice. Accord ing to th is principle, States
have a duty to ensure that individuals have appropriate access to
“appropriate, comprehensible and timely” information concern-
ing sustain able development th at is held by public authori ties,
and the opportunity to participate in decision-making processes,
as w ell as e ffective access to judicial and adm inistrative pro-
ceedings, includin g redres s and remedy.82 The 1998 Aarhus
Convention on Access to Informa tion, Public Participation in
Decision-making and Access to Justice in Environmental Mat-
ters83 is an example of an international legal instrument based
on this principle. Many international human rights instruments
also provide specifically for public participation, access to infor-
mation, and access to justice, including through the UN Human
Rights Council itself, which has public participation procedures
similar to those of the UN CSD.84 Provisions to ensure public
participatio n in the inter national tre aty-making processes ar e
also reflected in UNCBD at Article 13 on public education and
awareness, and Article 14.1(a) on participation in impact assess-
ment.85 The Cartagena Protocol on Biosafety contains similar
provisions at Article 23 on public awareness and participation;86
and the UNCCD reaffirms the principle in Article 3(a), an d in
Article 10.2(f), which recommends public participation in the
development of n ational actio n plans.87 The No rth American
Agreement on E nvironmental Cooperation, which runs parallel
to NAFTA, allows citizens to make claims under Article 14 and
15 processes to prompt the investi gation of non-enforcement
of environmental la ws.88 Furthermor e, the FAO Seed Treaty,
at Article 9.2(c), has specific provisions to recognize farmers’
rights to participate in decision-making concerning the sustain-
able use of plant genetic resources.89
The sixth is a principle of good governance. According to
the Ne w Delhi Dec laration, this principle commits States and
international organizations inter alia to adopt democratic and
transparent de cision-making procedures and financial account-
ability; to take effective measures to combat o fficial or other
corruption; to respect the principle of due process in their pro-
cedures; and to observe the rule of law and human rights. The
Declaration also notes that no n-state actors should be subject
to internal democratic governance and to effective accountabil-
ity, and encourages corporate social resp onsibility and socially
responsible investment among private actors. Good governance
is spe cifically noted as a p riority in the Johannesburg Plan of
Implementation, and the Commission on Human Rights Resolu-
tion 2001/72 on the Role of Good G overnance in the Promo-
tion of Human Rights has also underlined the importance of this
principle.90 W hile an international organization or government
that did not meet any of the ‘good governance’ criteria described
13 SUSTAINABLE DEVELOPMENT LAW & POLICY
above would ce rtainly be subject to crit ique, international trea-
ties are only j ust begi nning to incorpo rate suc h oblig ations.
The main treaty in this area is the UN Convention against Cor-
ruption,91 which is founded on international support for good
governance. This Convention notes i n its Preamble that cor -
ruption threatens the political stability and sustainable develop-
ment of States, and at Article 5.1 obliges all State Parties to,
in accordance with the funda mental principles of its legal sys-
tem, develop a nd implement or maintain e ffective, coordinated
anti-corruption policies that promote the participation of society
and reflect the principles of the rule
of law, p roper man agement o f
public affairs and public prop-
erty, integrity, transparency, and
accountab ility.92 Further, Arti-
cle 62.1 commits that in regard
to economic develo pment and
technical assistance, States will
take measures to implement the
Convention in their international
cooperation, taking into account
“the negat ive effects of corrup-
tion on soci ety in general, in
particular on sustainable devel-
opment .”93 A co mmitment to
good governance is also promi-
nent in UNCCD at Article 3(c)
which lays out the principles of
the treaty, and Article 10.2(e)
on estab lishin g inst itutio nal
frameworks for nat ional action
plans, as well as in Article 11 on
sub-regional and regional action
plans, and A rticle 12 on inter-
national cooperation.94
The seventh is a principl e
of integrat ion and interrelation-
ship, in p articular in re lation to
human rights and s ocial, economic, and environmenta l objec-
tives. Principle 4 of the Rio Declaration states that, “[i]n order
to ach ieve sustainable development, env ironmental protection
shall constitute an integral part of the development process and
cannot be considered in isolation from it.”95 If a customary inter-
national rule named “sustainable development” were to emerge,
this principle is the most likely candidate. However, as the New
Delhi Declaration itself recommends, such a norm could just as
easily be characterized as the “integration principle.”96 One cor-
ollary of this principle that is recognized in the Preambles of both
the UNFCCC and the UNCB D, involves the reco gnition that
“[s]tates should enact ef fective environmental legislation, that
environmental standards, management objectives and priorities
should reflect the environmental and developmental context to
which they apply, and that standards applied by some countries
may be inappropriate and of unwarranted economic and social
cost to other countries, in particular developing countries.” This
recognit ion, l ike th e rig ht to promot e sus tainable economic
development that is enshrined a s a princ iple of the UNFCCC
is important to understand the implications of integrating envi-
ronmental protection with social and economic development—
while t here is a commitment to take priori ties into ac count in
decision-making, and seek mutually supportive, balanced solu-
tions, this principle is not a trump card for the environment. It
is a commitment to c ompromise in good faith. The principle
is core to in ternational treaties on sustainable developm ent.
It is reflected in t he Preamble of the UNCBD an d at Article 6
on in tegrating cons ervation a nd
use objecti ves in policies and
plans; 97 and in the Ca rtagena
Protocol on Biosafety at the Pre-
amble where trade and environ-
ment reg imes are refer red to as
mutua lly sup portive, and s et
in practice by Articles 2.4 and
2.5 on the relati onship of the
Protocol to other interna tional
instruments. The p rinciple also
governs the FAO Seed Tre aty,
in the Pr eamble of which Par-
ties n ote the need for syner-
gies between environment and
development objectives, and in
Article 5.1 they commit to pro-
mote an integrated approach to
the us e of plant genetic reso ur-
ces for food a nd agric ulture.98
Arguably, the GATT at Article
XX pr ovides e xception s fo r
healt h, envir onment, and the
conservatio n of natural r esour-
ces in orde r to take social and
enviro nmental obje ctives into
account,99 as do es the NAFTA
thro ugh Ar ticles 10 3, 10 4 and
104.1, which govern the relationshi ps with other accords, a s
well as Article 1114 on not lower ing environmental standards
to a ttract investment , and A rticle 2101 on general exceptions
also seeks to take environmental p rotection into account in the
development process related to trade.100
In sum, through the negotiatio n and implem entation of
international treaties on sustainable development, States seek to
address specific sustainability challenges re lated to econo mic,
environmental, and also social aspects of development. Sustain-
able development objecti ves are r ecognized by states not just
in multilateral environmental agreements, bu t also in treaties
governing sustainable management of certain resources, such as
food and agriculture, and in trade and investment ag reements.
The colle ctions of princip les identified by the Legal Annex to
the WCED Report, the UNCSD, and the ILA, among others, are
not exhaustive. In the most part these principles are not yet rec-
ognized as binding rules of customary international law. And in
It seems probable that
the future of sustainable
development law will be
advanced and enhanced
over the coming decades
through the interaction
of international treaty
regimes with domestic
regulatory regimes,
as well as through a
dialogue of international
courts and tribunals.
14FALL 2009
some cases, they may never be. Though States can and do refer
to broad objectives a nd principles of sustainable development
in these tr eaties, su ch general commitment s are increasingly
being operationalized in the more detailed provisions of certain
accords, including through the recommendation of specific legal
and policy measures to ensure that a particular globally import-
ant resources ca n last over the long term. Further , States are
starting to apply functional principles, which, in the contex t of
each specific treaty regime, take on particular meanings to guide
the cooperation of the Parties in the advancement of sustainable
development.
PROGRESS IN INTERNATIONAL TRIBUNALS
Since the 1992 Rio Earth Summit, as noted above, inter-
national trib unals and courts have also begun to pronounce on
sustainable development, mainly in orde r to resolve dis putes
that require a balance between environmental and development
concerns in a transboundary context. In decision s of the Inte r-
national Court of Justice (“ICJ”), imp ortant referenc es to the
need to manage resources in a sustainable manner, and to bal-
ance between environment and development interests, are found
in the G abcikovo-Nagymaros Case,101 the Nuclear Tests Advi-
sory Opinion (especially Judge Weeramantry’s Dissent),102 the
Kasikili / Sedudu Case (especially Judge Weer amantry’s Dis-
sent),103 and the Order of Provisional Measures in the Pulp Mills
on the River Uruguay Case,104 as well as in the recent findings of
the Permanent Court of Arbitration in the Tribunal Award of the
Iron Rhi ne Arbitration.105 Such decisions appear to be slowly
taking into account some of the principles mentioned above, as
an ai d to judic ial reasoning. Certain select ed examples below
focus mainly on recent internationa l courts and tribunal s’ con-
sideration of the “integration principle” mentioned above, which
may occasionally be characterized, in less than elucidatory legal
shorthand, as a “sustainable development principle.”
It is possible that interna tional courts and tribunals, in the
years since the 1992 Rio Earth Su mmit, are becoming more
willing to go beyond a sim ple “balance” of env ironmental and
economic concer ns, towards actual integration of environmen -
tal, economic, and social considerations in development. A key
example of the way the dilemma of balancing environment and
developme nt is found in the often-quote d earl y Gabc ikovo-
Nagymaros Case,106 where pursuant to a treaty, one Party sought
to build a dam on a transboundary river over the objections of
the other. The majority stated that:
Throughout the ages, mankind has, for ec onomic and
other reasons, constan tly interfered with nature. In the
past, this was often done without consideration of the
effects upon the e nvironment. Owing to new scien-
tific in sights and to a growing awareness of the risks
for ma nkind—for present and future generations—of
pursuit of such interventions at an unconsidered and
unabated pace, new no rms and standards have been
developed, set forth in a great numb er of instruments
during the last two deca des. Such new norms have to
be taken into consideration, and such new standards
given proper weight, not only when States contemplate
new activities but also when continuing w ith activi-
ties begun in the past. This need to reconcile economic
development with protection of the environment is aptly
expressed in the co ncept of su stainable development.
For the purposes of the present case, this means that the
Parties together should look afresh at the effects on the
environment of the operation of the Gabcíkovo power
plant. In particular they must find a satisfactory solu-
tion for the volume of water to be released into the old
bed of the Danube and into the side-arms on both sides
of the river.107
Due to the spec ific fac ts of this case, it a ppears at first
glance that only procedural requir ements were imposed on the
Parties in connection with a “concept” of sustainable devel-
opment. However the Court did, essentially, order the Parties
to balance environmenta l prote ction w ith the ir devel opment
interests by ordering them to “look afresh at the effects on the
environment . . .” and “find a satisfactory solution.” The major-
ity described this as a ‘need’ to reconcile economic devel op-
ment with the protection of the environme nt. H.E. Judge C.G.
Weeramantry, as Vice-President of the ICJ, further argued that
sustainable development is a principle of international law in his
Separate Opinion in the Gabcikovo-Nagymaros Case. In particu-
lar, he stated that he co nsiders sustainable development to be
“more t han a mere concept, but as a pr inciple with n ormative
value which is crucial to the determination of this case.”108
If there were, indeed, a normative function for such a prin-
ciple, it might involve the requirement to integrate environment
and development considerations. More recently, the 2005 Iron
Rhine (Belgium v. Netherlands) Award109 of the Arbitral Tribu-
nal struck under the auspices of the Permanent Court of Arbi-
tration addressed the issue of balance between environment and
development considerations. The case concerned a Party seeking
to reactivate a railway across the territory of another pursuant to
a venerable treaty, where it was unclear which State should bear
the burden of environmental impact assessment and mitigation
measures. In its decision, the Tribunal first recognized that:
There is considerable debate as to what, within the field
of environmental law, constitutes ‘rules’ or ‘principles’;
what is ‘soft law’; and which environmental treaty law
or p rinciples have contributed to the d evelopment of
customary i nternational law. With out entering further
into those controversies, the Tribunal notes that in all
of these categories ‘environment’ is broadly referred to
as in cluding air, water, land, flora and fauna, na tural
ecosystems and sites, human health and safety, and cli-
mate. The emerging principles, whatever their current
status, make reference to conse rvation, managemen t,
notions of prevention and of sustainable development,
and protection for future generations.
The Tribunal then explained:
15 SUSTAINABLE DEVELOPMENT LAW & POLICY
Since the Stockholm Confere nce on the Environment
in 1972 there has been a marked development of inter-
national la w relating to the protection o f the environ-
ment. Today, both international and EC law require the
integration of appropriate environmental mea sures in
the d esign and implementation of economic develop-
ment act ivities. Principle 4 of the Rio Declaration on
Environment and Development, adopted in 1992 which
reflects this trend, provides that ‘environmental protec-
tion shall constitute an integral part of the development
process and cannot be considered in isolation from it.’
Importantly, these emergin g principles now integrate
environme ntal prot ection i nto the developm ent pro-
cess. Envir onmental law and the law on development
stand not as alternatives but as mutua lly reinforcing,
integral concepts, which require tha t where dev elop-
ment may cause significant harm to the environm ent
there is a duty to prevent, or at least mitigate, such
harm . . . . This duty, in the opinion of the Tribunal, has
now bec ome a princ iple of gene ral international law.
This principle applies not only in autonomous activities
but also in activities unde rtaken in implementation of
specific treaties between the Parties.110
The Tribunal recalled the observation of the ICJ in the
Gabcík ovo-Nagymaro s Case that “[ t]his need to r econcile
economic development with protectio n of t he environment is
aptly ex pressed in the concept of sustainable developme nt”111
and c ited with approval the ICJ’ s recogni tion that “new
norms h ave to be taken into consideration, an d . . . new stan -
dards given proper weight, not only when States cont emplate
new activities but also when continuing with activities begun in
the past . . . .”112 It held that “this dictum applies equally to the
Iron Rhine railway.”113
This determination was directly relevant for the decision in
this case:
As the Tribunal has already observed above . . . eco-
nomic development is to be reconciled with the protec-
tion of the environment, and, in so doing, new norms
have to be taken into cons ideration, i ncluding whe n
activiti es be gun in th e pas t are now expa nded and
upgraded.
. . .
Applying the principles of internat ional environmen-
tal law, the Tribunal . . . is of the view that, by anal-
ogy, where a state exercises a right under international
law within the territory of another state, considerations
of en vironmental protec tion also apply. The exercise
of Be lgium’s right of transit, as it has formula ted its
request, thus may well necessitate measures by the
Netherlands to protect the environment to which Bel-
gium will have to contribute as an integral element of
its request. The reactivation of the Iron Rhine railway
cannot be viewed in isola tion from the environmental
protection measures necessitated by the intended use
of the railway line. These measures are to be fully inte-
grated into the project and its costs.114
In the Ir on Rhine award, the Tribunal found th at where
development may cause significant harm to the environment
there is a duty to prevent, or at least mitigate, such ha rm, and
stated that this is now an accepted principle of international law.
But the Tribunal also mentions various other potential principles
of law such as “sustainable development,” and makes a further
finding tha t environmental me asures must be “fully integrated
into the project and its costs,” linking this to the exhort ation
found in Principle 4 of the Rio Declaration on Environment and
Development which provides that “in ord er to achieve sustain-
able development, environmental protection shall constitute an
integral part of the development process and cannot be consid-
ered in isolation from it.” One interpretation is that the Arbitral
Panel was apply ing an “integration principle” in conjunct ion
with the directly recognized “no environmental harm” principle,
in order to find that the costs of impact assessments and miti-
gation measure s should be bor ne by the Party carrying out the
development (as an integral part of the reactivation o f the Iron
Rhine Railway), rather than by the Party through whose territory
the railway would pass. In the future, this recognition might be
extended by States to include situations where the “development
process” consists of undertaking new trade and investment dis-
ciplines, or initiating development projects that will significantly
affect the global commons. Were such a princi ple eventually
recognized, it would likely still have real limits—“constituting
an integ ral part” is not the same as “becomi ng a trump card.”
Indeed, such a principle might also press States to, a l’envers,115
ensure that environ mental protection activit ies ( such as the
development of new environmental laws) not be undertaken “in
isolation” without ensuring that social and economic develop-
ment priorities and norms are taken into account.
A recent deci sion in the I CJ does suggest such an outer
boundary to such a norm. Positive claims based on a S tates’
“sovereign right to implement s ustainable economic develop-
ment pro jects” were used by States in the 200 6 Pulp Mills on
the River Uruguay Case. In its findi ngs of Provisional Meas-
ures of July 2006, the ICJ notes that Uruguay “maintained that
the provisional measures sought by Argentina would therefore
irreparably prejudice Urug uay’s sovereign right to implement
sustainable economic development projects in its own territory.”
As Alan Boyle, Counsel for Uruguay before the ICJ in the pub-
lic sitting for provisional measures in the aforementioned Pulp
Mills on the River Uruguay Case, argued:
This is not a dispute in which the Court has to choose
between one party seeki ng to preserve an unspo iled
envir onment a nd anoth er part y reckle ssly pur su-
ing unsu stainable development, without regard to the
environment, or to the rights and interests of neighbor-
ing Sta tes. It is a case about balancing the legitimate
interests of both parties. It i s a case in w hich Uru -
guay has sought—wi thout much co-operation from
its neig hbor— to pursue sustainable eco nomic devel-
opment whil e do ing everything possibl e to pro tect
16FALL 2009
the environment of the river for the benefit of present
and future generations of Ur uguayans and Argentines
alike.116
It is possibl e that a concern for such a right of a State was
a principal element in the ICJ’s reasoning in its first Order with
regards to Provisional Measures in the Pulp Mills on t he River
Uruguay case,117 where it found:
. . . the present case highlights the importance of the
need to ensure env ironmental protec tion of shared
natural resources while allowing fo r sustainable eco-
nomic development; . . . it is in particular necessary to
bear in mind the reliance of the Parties on the quality
of the water of the River Uruguay for their livelihood
and economic development; . . . from this point of view
account must be tak en of the need to safeguar d the
continued conservation of the river enviro nment and
the rights of economic development of the riparian
States; . . .118
Should an “integration” or “sustainable development” prin-
ciple be recognized in international law, it seems that the norm
would not forbid sustainable economic d evelopment as such.
Rather, it would require States not to prevent or frustrate each
other from promoting sustainab le deve lopment, and fu rther,
“where development may cause significant harm to the environ-
ment” or to social development, it wou ld require States to take
steps to address “a duty to prevent, or at least mitigate” such
harm by ensuring that environmental (and social) measures are
“fully integrated into the project and its costs.” Bounded on one
side by the Iron Rhine Railway award, and on the other by the
Pulp M ills on the River Urugua y order, such an “integrat ion”
principle might become recognised as an emerging principle of
customary law, and could be useful to guide States in resolving
differences that require a balance betw een environmental, eco-
nomic, and social development priorities.
Another intern ational tribunal has also had occasion to
examine, between the Rio and Johannesburg Summits, the need
to balance between environmental protection and internat ional
economic development priorities, taking a different approach.119
The Retrospect ive A nalysis of t he 19 94 Can adian Environ-
mental Review of the WTO, carried out by Canada’s Department
of Foreign Affairs and International Trade (“DFAIT”) after five
years of GAT T implementation, focused on GATT Article XX
as an important safeguard for a State’s ability to secure sustain-
able development. 120 In 1998, in the Uni ted Sta tes—Shrimp
Case, the WTO di spute settlement mechanism con sidered the
meaning of these exceptions, in light of the WTO Agreement’s
Preambular commitmen t to sustainable development. By the
time the dispute was resolved, four Pane l and Appellate Body
Reports had evaluated the same me asures, providing the clea r-
est e xpression, to date, of the meaning of State commitments
to susta inable develop ment in the WTO Ag reements. The
United States – Shrimp Dispute concerned a regulation u nder
the 1973 U.S. Endangered Species Act to protect five differe nt
species of endangered sea turtles. A U.S. law requires that U.S.
shrimp trawlers use “turtle excluder device s” in their nets. A
different law then prohibits shrimp imports from States that har-
vest shrimp in areas where these endangered turtles are found,
unless the States in question are certified users of the technolo-
gies that protect the sea turtles. India , Malaysia, Pakistan, and
Thailand, as shrimp exporters, co mplained that the prohibition
was inconsistent with U.S. GATT obligations. The complainants
argued that the embargo on shr imp violated the most-fa voured
nation rul e of Article I:1 of the GATT 1994 because products
from different cou ntries were treated d ifferently base d solely
on the method of harvest (i.e. whether a tu rtle excluder device
had been used) .121 The complainants also ar gued a violation of
Article XI:1 of the GATT 1994 because contrary to their obliga-
tions to g enerally eliminate quantitative restric tions on imports
and exports, the United States had imp lemented an embargo
which r estricted trade. The complainants also alleged a viola-
tion of Article XIII:1 of GATT 1994 because the United States
restricted t he importation of shrimp and shrimp products from
countries which had not b een certified, while “ like products”
from other countries which in turn meant a differential treatment
of “like products.” (This would imply that the United States was
discriminating between like products on the basis of how they
are mad e, their pro duction processes, and methods (“PPMs”),
rather than due to distinc t physica l charact eristics and other
permissible grounds). The Panel found that the Unite d States
had violated Article XI:1 of the GA TT 1994.122 It then exer-
cised judicial restraint, and did not express itself on the possible
violation of Article I or XIII:1 of the GATT 1994 because one
violation had been found. From that point onward, most of the
Panel’s analysis centered o n interpretat ions of the sco pe and
nature of Article XX of the GATT 1994, on general exceptions.
Article XX (g) GATT 1994, which provides for a general excep-
tion to GATT obligations:
Subject to the requirement that such measures are not
applied in a manner which would constitute a means of
arbitrary or unjustifiable discrimination between coun-
tries where the same conditions prevail, or a disguised
restriction on international trade, nothing in this Agree-
ment shall be construed to prevent the adoption or
enforcement by any contracting party of measures: . . .
(g) relati ng to the conservation of e xhaustible natural
resources if such measures are made effective in con-
junction with restrictions on domesti c production or
consumption . . .123
In the case, the US proposed that Art. XX GATT should be
interpreted in the light of the Preamble of the WTO Agreement;
“[a]n envir onmental purpose is fundamental to the application
of Article XX, and such a purpose cannot be ignored, especially
since the preamble to the WTO Agreement a cknowledges that
the rules of trade should be in accordance with the objective of
sustainable development, and should seek to protect and pre-
serve the environment.124 (In its arguments, the United States
omitted the r eference to the world’s resources an d the state-
ment conc erning the “respe ctive needs and concerns at differ-
ent levels of economic development”). The United States, at the
Panel sta ge of the dispute, specifically argued that sustainable
17 SUSTAINABLE DEVELOPMENT LAW & POLICY
development is a principle of international law, in particular of
WTO law:
The United States noted tha t the World Trade Orga-
nization Agreement, which was the first m ultilateral
trade agreement concluded after the UN Conference on
Environment and Development, provided that the rules
of trade must not only promote expansion of trade and
production, but must do so in a manne r that res pects
the princi ple of sustainable development and protects
and preserves the envi ronment. Yet, the complain-
ants claimed that in becoming a Member of the World
Trade Organization, the Unite d States had agre ed to
accept imports of shrimp whose harvest and sale in the
US market might mean the extinction from the world of
sea turtles for all time.”125
The int erpretation that the Panel and Appellat e Body
adopted was a change from the findings of a much earlier GATT
Panel in the Tuna – Dolphin Case I.126 In that earlier un-adopted
GATT report,127 the Panel had found that references to domes-
tic production and consumption meant that a GATT Contracting
Party could only adopt restrictions within their own jurisdiction,
rather than for the protection of r esources in other countries
and suggest ed that furthermore, such a m easure could only be
adopted for the resource in question (in that case tuna), not for
other species (such as dolphins) . In the United States—Shrimp
Case, the Panel found that the new preambular language of the
WTO Agreement could have an influence on the interpretation
of Article XX GATT. The Panel further clarified that, thus “the
Preamble endorses the fact that environmen tal policie s must
be designed taking into account the situation of each Member,
both in terms of its actual needs and in terms of its economic
means.”128 In its reasoning, the Panel highlighted a quote from
the 1992 Rio Declaration, recognizing that all countries could
design their o wn environme ntal policy and that intern ational
cooperation rather than unilateral measures are needed for sus-
tainable development.129
The WTO Appellate Body further clarified the findings
of the Pa nel. It found in favor (contrary to the Tuna – Dolphin
cases) of the United States that Article XX (g) could be applied
to protect turtles. However it did not completely follow the US
argument regarding a principle of international law:
The wor ds of Article XX(g), ‘exhau stible natur al
resources,’ were ac tually crafted more th an 50 years
ago. They must be read b y a treat y interpreter in the
light of contemporary concerns of the community of
nations about t he protection and conservation of the
environ ment. While Artic le XX was not modifie d
in the Uruguay Round, the preamble attached to the
WTO Agreement shows that the signatories to that
Agreement were, i n 1994, fully awar e of the impor-
tance and legitimacy of environmental protection as a
goal of national and international p olicy. The prea m-
ble of the WTO Agreemen t—which informs not only
the GATT 1994, but also the other covered agree-
ments— explicitly acknowledges ‘the objective of sus-
tainable development.’130
The enclosed legal note,131 as part of the Appellate Body’s
decision , des erves particular attention . The Appel late Body
refers to the objective of sustainable devel opment and t hen
provides in the footnote a simple definition for the concept. In
particular, the Appellate Body explai ned that “[t]his concept
has been generally accepted as integrating economic and social
development and environmental protection.”132 This is remark-
able for two reasons. First, the WTO Appellate Body expresses
itself about the nature of sus tainable development, agreeing
that it is considered to be an objective of the WTO. Second,
the WTO recognises (in line with the findings of the 1997 UN
General Assembly Special Session, the Earth Summit +5) the
need to integrate a ll three ele ments or “pil lars” of sus tainable
development—social development, eco nomic development and
environmental protection. This highlights the important social
dimension of the concept, as was late r also recognised in the
2002 WSSD.
In cases before the European Court of Human Rights, States
have si milarly been allowed a wid e margin of appreciation to
pursue economic objectives provided they regulate environmen-
tal nuisances and enforce their own law,133 and otherwise main-
tain a fair bala nce between the benefits for the community as
a whol e and the protection of the individu al’s right to private
and family life or protection of possessions and property.134 In
the latter context economic development may be seen as unsus-
tainable if it fails adequately to respect human ri ghts, but the
case will have to be a fairly extreme one. Similar considerations
have been made by the Inter-American Commission and Court
of H uman Rights,135 the African Commission on Human and
Peoples Rights,136 and the UN Human Rights Committee.137
CONCLUSIONS
This article highligh ts how the objectiv e of sustain able
development, and its principles, ha ve been en hanced and fur-
thered by inter national foru ms. As a genera l principle, inter-
national for ums have contributed to the growth and expansion
of sustainable development by providing a space within which
State and non-state actors may come together for a collective
discussio n of their sustainabili ty-related challenges. Both in
terms of “soft la w” (in this area, a process of global summit s
and declarations), and “hard law” (in this field, mainly treaties),
the global objective of sustainable development is advanced by
international forums. This article has focused on three ways that
this adv ancement takes place. First, it has shown that through
international “soft law” policy making processes on sustainable
development, States are defining and refining a deeper under-
standing of what sustainable development means in specific
instances, ident ifying the most impor tant priorities for su stain-
able development, and seeking certain elements of consen sus
on how these priorities can and should be address ed at differ-
ent levels through policy and even law. The Agenda 21 and the
JPOI, in par ticular, demonstrate this process of evolving defin-
itions, priority setting, and action plans, supported by informal
18FALL 2009
partnerships. Second, it argues that through the negotiation and
implementation of international treaties on sustainable develop-
ment, States and others are using intern ational venues to find
cooper ative solution s for specific sus tainability ch allenges
related to economic, environmen tal, and also social aspects of
development. This includes, where appropriate, the adoption in
treaty regimes of certain operational principles such as a duty to
ensure sustainab le use of natural resources, precaution, equity,
openness and public participation, common but differentiated
responsibility , or in tegration. And third, i t has suggested that
through the peaceful settlement of disputes related to sustain-
able development, States are gaining va luable guidance from
international courts and tribunals on how it is possible to resolve
certain particular transboundary problems that invoke a need to
balance environment al, economic, and social development pri-
orities. There even appears to be certain willingness on the part
of international courts and tribunals to refer to principles such as
‘integration’ in their attempts to resolve such disputes.
Interna tional forums ar e not just useful to su stainable
development as a matter of history, however. International treaty
law in the field of sustainable development is a vital, and indeed
vibrant, area of study that has seen a dramatic growth through-
out its r elatively short history. Given the inevitable differences
involved in coordinating social, environmental economic devel-
opment policy between 194 countries with distinct cultures, pri-
orities, and challenges, and given the short timelines of the last
three decades, a great deal of progress is actually being made for
sustainable development in many areas. However, this space is
very much “still developing,” with many of the most interesting
and difficult details still to be worked out.
It seems probable that the future of su stainable deve lop-
ment law will be advanced and enhanced over the coming dec-
ades through the interaction of international treaty regimes with
domestic regulatory regimes, as well as through a dialogue of
international courts and tribu nals. Indeed, the scope of inter-
national forums, which have and will affect sustainable develop-
ment and its legal unde rpinnings, has expand ed t o in clude
international arbitral bodies, including those associated primar-
ily with trade such as the WTO. This article only paints a brief,
broad-brush picture of certai n emerging trends. Further lega l
scholarship and practice is needed to realize the promise of sus-
tainable development in international law.
Endnotes: The Role of International Forums in the Advancement of
Sustainable Development
Endnotes: The Role of International Forums in the Advancement of
Sustainable Development continued on page 78
1 G.A. Res. 4/128, U.N. Doc. A/Res/41/128/ (Dec. 4, 1986), available at
http://www.un.org/documents/ga/res/41/a41r128.htm.
2 See, e.g., uniteD nationS Development programme, http://www.undp.org
(last visited Nov. 08, 2009); Organisation Economic Co-operation and Devel-
opment, available at http://www.oecd.org.
3 amartya Sen, Development aS freeDom 35 (Anchor 1999).
4 See generally United Nations Millennium Declaration, g.a. reS. 55/2, u.n.
Doc. A/Res/55/2 (Sept. 18, 2000), available at http://www.un.org/millennium/
declaration/ares552e.pdf; un Development programme, human Development
report 2009, 171, 204, available at http://hdr.undp.org/en/media/HDR_2009_
EN_Complete.pdf.
5 See, e.g., mathiS wacKernagel et al., our ecological footprint:
reDucing human impact on the earth (Island Society 1995); the worKS of
thomaS robert malthuS vol. 1: an eSSay on the principle of population 9
(E.A. Wrigley & D. Souden, eds. 1986); D.w. pearce & r.K. turner, eco-
nomicS of natural reSourceS anD the environment 6-7 (The John Hopkins
University Press 1990).
6 See Lexikon der Nachhaltigkeit, http://www.nachhaltigkeit.aachener-stif-
tung.de (last visited Nov. 9, 2009).
7 See, e.g., G. D. Meyers & S. C. Muller, The Ethical Implications, Political
Ramifications and Practical Limitations of Adopting Sustainable Development
as National and International Policy, 4 buff. envtl l.J. 1 (1996); see also A.
Geisinger, Sustainable Development and the Domination of Nature: Spreading
the Seed of the Western Ideology of Nature, 27 b.c. envtl. aff. l. rev. 43
(1999). See generally Stockholm Declaration on the Human Environment of
the United Nations Conference on the Human Environment, U.N. Doc. A/Conf
48/14/Rev.1, 11 I.L.M. 1416 (June 16, 1972), available at http://www.unep.org/
Documents.multilingual/Default.asp?DocumentID=97&ArticleID=1503 [here-
inafter StocKholm Declaration].
8 convention on international traDe in enDangereD SpecieS of wilD
fauna anD flora, Mar. 3, 1973, 993 U.N.T.S 243, 12 I.L.M. 1085 [hereinafter
CITES].
9 In “Towards Sustainable Development,” the Strategy linked ecological
destruction with poverty, population pressure, social inequity, and trade rela-
tionships, laying out the need for a new international development strategy
which could establish a more dynamic and stable world economy, stimulate
accelerating economic growth, counter the worst impacts of poverty, and pro-
mote greater equity.
10 World Charter for Nature, G.A. Res 37/7, ¶ 8, U.N. Doc. A/Res/37/7 (Oct.
28, 1982), available at http://daccessdds.un.org/doc/RESOLUTION/GEN/
NR0/424/85/IMG/NR042485.pdf?OpenElement.
11 Process of Preparation of the Environmental Perspective to the Year 2000
and Beyond, G.A. Res. 38/161, ¶ 2, U.N. Doc. A/RES/38/161 (Dec. 19, 1983),
available at http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/445/53/
IMG/NR044553.pdf?OpenElement.
12 U.N. World Comm’n on Env’t & Dev., Report of the World Commission
on Environment and Development: Our Common Future; Annex 1: Summary
of Proposed Legal Principles for Environmental Protection and Sustainable
Development Adopted by the WCED Experts Group on Environmental Law,
U.N. Doc. A/42/427 (Aug. 4, 1987), available at http://www.un-documents.net/
ocf-a1.htm [hereinafter Our Common Future].
13 Id. at 54.
14 aleXanDre KiSS & Dinah Shelton, international environmental law 67
(1994).
15 international union for conServation of nature anD natural reSourceS
commiSSion on environmental law, agenDa 21: earthS action plan §38.1
(Nicholas A. Robinson, ed. 1993) [hereinafter agenDa 21], available at http://
www.un.org/esa/dsd/agenda21/res_agenda21_00.shtml.
16 Id. §§1.1-8.54 (addressing international co-operation to accelerate sustain-
able development in developing countries, poverty, consumption patterns,
demographic dynamics, human health, human settlements, and integrating
environment and development in decision-making).