Author:Marcos Orellana
Position:WCL alumni from Chile
2FALL 2009
by Marcos Orellana*
While its exact legal nature and st atus re mains th e
object of controversy, sustainable development, at a
minimum, requires the integration of environmental
concerns in development decision-making. The Iron Rhine Rail-
way arbitral tribunal recently affirmed this notion. While the pro-
cess of i ntegration required by sustainable development occurs
mainly in the planning and implementation stage of projects and
policies, th e resolution of disputes concerning those economic
activities also calls fo r an attempt to integrate the various rel-
evant legal fields. In this regard, sustainable development invites
a normati ve dialogue betw een competing nor ms and interests ,
and courts have a central role in providing a forum for such dia-
logue, both at the international and national levels.
Sustainable development finds its roots in the Stockholm
Declaration on the Human Environment, endorsed by the UN
General Assembly in 1972, which deals with the integration of
economic, environmen tal, and social justice issues. In 1975 ,
a decision of t he UN Environme nt Progr amme’s G overning
Council empl oyed the term sustainable development as a con-
cept “aimed at meeting basic human needs without transgress-
ing the outer limits set to man’s endeavours by the biosphere.”
In 1980, the International Union for the Conservation of Nature
and Natural Resources prepared its World C onservation Strat-
egy which emphasized integration in its definition of sustainable
development: “in tegration of conservation and development to
ensure that modifications to the planet do indeed secure the sur-
vival and well-be ing of all people.” The concept of sustainable
development acquired international recognition as a result of the
report of the World Commission on Environment and Develop-
ment, “Our Common Future:”
Sustainable development is development that meets the
needs of the present without compromising the ability
of future generations to meet their own needs. It con-
tains within it two key concepts:
• The concept of needs, in particular the essential needs
of the world’s poor, to which overriding priority
should be given; and
• The idea of limitations imposed by the state
of technology and social organization on the
environment’s ability to meet present and future needs.
Sustainable development carries profound implications f or
economic activit ies. T he tran sition towards sustainability in
response to the alarming de terioration of the earth ’s environ-
ment requires both immediate and gradual changes in production
and consumption patterns. The required regulatory changes will
affect not only new activities, but also those economic activities
already under way, as clarified by the International Court of Jus-
tice in the Gabcikovo/Nagymaros case. It is thus foreseen that
the necessary changes in the legal structures governing the local
and global economies will impose costs on existing activities as
*Dr. Marcos A. Orellana is a WCL alumni from Chile. He is Senior Attorney at
the Center for International Environmental Law (“CIEL”) and Adjunct Profes-
sor at American University Washington College of Law.
well as foster new opportunities in the marketplace. At the same
time, investments in activities that reduce humanity’s “ecologi-
cal footprint” are indispensable to fuel the t ransition toward s
It is also foreseen that sustainable development requires
adaptive management and evolving norms in order to in corpo-
rate new scientifi c insights and less ons learned regarding the
operation and effectiveness of legal tools. In a long-term per-
spective, t he international commu nity has come to realize that
while the challenges involved in sustainable development ar e
formidable, they are also indispensable to maintain the viability
of the planet and to safeguard the rights of unborn generations.
With the emergence of sustainable development as the over-
arching policy frame work, the international community face s
the challenge of finding channels for normative and institutional
dialogue between economic, social, and environmental regimes.
An important tool for dialogue is sustainable development’s call
for science-based decision-making, including with regard to the
precautionary principle. Indeed the 2002 Plan of Im plementa-
tion conclu ded at the Wo rld Summit for Sustainable Develop-
ment expressly re cognizes the need to “[p]romote and improve
science-based decision-making a nd reaffirm the precautionary
approach as set out in principle 15 of the Rio Declarat ion on
Environment and Development.”
In the 1992 UN Conference on Environment and Develop-
ment, governm ents officially adopted sustainable development
as the d evelopment paradigm. Since that adoption, the concept
of sustainable development ha s influenced not only the legal
structure s governi ng polic y-making, but al so those concern -
ing dispute settlement. Accordingly, international and na tional
courts have a critical role in clarifying the contents of sustain-
able development in concrete historical circumstances.
The role of dom estic co urts is particu larly im portant in
regard to su stainable d evelopment, given tha t courts address
particular disputes that reflect concrete tensions a nd interests
and not abstract controversies. In addition, the societal bal-
ance bet ween competing e conomic, environmental, and social
considerations are often mediated by domestic laws, both sub-
stantively and procedurally. It is thus incumbent upon domestic
courts to interpret and give e ffect to int ernal laws e mbodying
societal preferences, with the aid of the principle of sustainable
development. In this light, this volume explores how national
and international court s are us ing the principle of sustainable
development to reconcile tensions that surface between environ-
mental, social, and economic issues.