The 2002 Johannesburg World Summit on sustainable development: International Environmental Law collides with reality, turning Jo'burg into "joke'burg".

• Author: Pring, George

"Betrayal," (1) "disaster," (2) "shameful, disgraceful, and for American citizens ... an embarrassment" (3) are but some of the negative assessments of the recent United Nations World Summit on Sustainable Development (WSSD a.k.a. "Earth Summit" or "Rio+10"), held August 26-September 4, 2002, in Johannesburg, South Africa. (4) Even its UN promoters damn it with faint praise, for example UN Environment Programme Executive Director Klaus Toepfer's statement that "Johannesburg is less visionary and more workmanlike [than Rio] ...," (5) and UN Secretary-General Kofi Annan's apologetic (and historically inaccurate), "We have to be careful not to expect conferences like this to produce miracles.... This is just a beginning.... (6)

The more accurate assessment of the 2002 Earth Summit lies between these extremes of acid and apologetics. At Jo'burg, the expanding field of International Environmental Law (IEL) ran headlong into the hard reality of the world's existing economic order, and the economic order did not give ... much. What resulted was indeed a shamefully wasted opportunity for expanding IEL, but at least it avoided rolling back thirty years of progress, as at times it seemed it might. The US Government and some other nations worked against virtually all positive change at Jo'burg, sought rollbacks in existing law, and were very effective. (7) The best view of the Summit is, if it did not move IEL forward, at least it did not give up serious ground, did flush the nay-sayers out of the political backrooms and expose them to intense worldwide scrutiny, and did not foreclose possibilities for progress in IEL in the years to come.

It started out well-intentioned enough. The UN General Assembly resolution authorizing the Johannesburg Conference envisioned a "summit ... to reinvigorate the global commitment to sustainable development," to "focus on the identification of accomplishments and areas where further efforts are needed," to carry out the pledges made ten years earlier at the UN Conference on Environment and Development in Rio de Janeiro, Brazil (UNCED or "Rio Conference"). (8) Thus, as originally envisioned, the Johannesburg Conference was to carry on the tradition of precedent-setting UN environment and development conferences begun with the 1972 UN Conference on the Human Environment in Stockholm Sweden (UNCHE or "Stockholm Conference") and the 1992 Rio Conference.

The now-legendary 1972 Stockholm Conference was the "dawn" of IEL, the largest and best-attended international conference on any topic to that point. (9) It produced a consensus declaration of twenty-six "principles" governing international environmental protection, (10) notably groundbreaking ones like the human "right" to a quality environment, (11) the "responsibility to protect and improve the environment," (12) and the famous no-harm rule against significant transboundary environmental pollution or damage. (13) A number of these Stockholm Principles have become accepted as legally binding over the years. (14)

The "North-South" environment-vs.-development split, which has become such a fixture of IEL today, first manifested itself in the leadup to this conference, as the developing nations (the "South") served notice that the environmental protection standards of the developed, industrialized world (the "North") should not be imposed so as to block needed economic development of the poorer nations. (15) The split was assuaged with a few references in the Stockholm Principles (such as "economic and social development is essential") (16), but the North kept Stockholm's overall focus on environmental protection.

When the LIN began planning a second global environmental conference, in recognition of the twentieth anniversary of Stockholm, it was clear the South would not to be so easily appeased. Diplomatic disaster was averted by the expedient of inventing a new legal paradigm--"sustainable development"--that promises to merge the twin aspirations of protecting the environment while pursuing the development of the South. (17) While still largely undefined, the term's best-known formulation is "development that meets the needs of the present without compromising the ability of future generations to meet their own needs" environmentally, socially, and economically. (18) (Thus, development interests won the all-important noun, and all other interests--environment, society, culture, governance, human rights, etc.--had to be content with being relegated to the adjective.) With this new vision, the 1992 Rio Conference was a blockbuster success in terms of IEL "deliverables," producing a new declaration of principles, (19) a 500-plus-page Agenda 21 plan for implementing them, (20) two new global treaties for climate change (21) and biodiversity protection, (22) and non-binding principles for the world's forests. (23) The Rio Principles introduced many notable new concepts of IEL, including the "right to development," (24) "common but differentiated responsibilities," (25) reduction and elimination of "unsustainable patterns of production and consumption," (26) "public participation" in environmental decision making, (27) trade-environment linkage, (28) the "precautionary" principle for dealing with scientific uncertainty, (29) the "polluter-pays" principle, (30) promotion of "environmental impact assessment," (31) protection of "indigenous people" and "local communities," (32) and a reaffirmation of the no-transboundary-harm rule. (33) Half of its principles contained the norm "sustainable development."

Rio was a "watershed in mainstreaming environmental concerns." (34) It succeeded in crystallizing progressive IEL norms, created a new body of international law treaties, launched new supranational structures and processes, set up machinery for multilateral environmental decisionmaking, and encouraged national-level sustainable development planning. However, in the years following, most of this momentum was neutralized by economic globalization, governmental inertia, and inadequate funding, with little to show for the Rio rhetoric. (35)

So, as Rio's tenth anniversary loomed, "it was hardly a secret--or even a point in dispute--that progress in implementing sustainable development has been extremely disappointing since the 1992 Earth Summit, with poverty deepening and environmental degradation worsening." (36) In response, the UN specifically created the Johannesburg Summit to "reinvigorate" the process of implementing Agenda 21 and the Rio Declaration. (37)

But a funny thing happened on the way to that forum--en route, the UN's vision was taken hostage by both the South and the North. The South reconceived Johannesburg in its own image--to be a development rather than an environmental summit, one that would focus on poverty alleviation and wealth redistribution to their betterment. (38) Meanwhile, elements of the North--particularly the USA under the George W. Bush Administration and some other nations--sought desperately to avoid that fiscal focus by insisting the agenda produce no new multilateral goals, no new IEL treaties, mandatory agreements, or even legal principles of substance, and no fixed targets, percentages, or timetables for accomplishing Agenda 21's ten-year-old promises. The US excuse for this stand was to assert that it would take "concrete projects" not "paper...