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

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: earth’S 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).