My role today is that of critical observer and provocateur. Today I will talk about a disturbing story line in the development of international environmental law and how it is shaping the approaching UN Conference on Sustainable Development in Brazil--appropriately designated Rio+20, because to call it Stockholm+40 in reference to the first genuine environmental gathering of world leaders would require a much more ecological focus than its "green economy" theme can deliver. Unlike today, it was generally recognized in 1972 that those who planned and attended the Stockholm Conference "had ... the spiritual qualities of our relationship to the earth [and] the ecological health of our planet [foremost in mind]." (1) As far as I can tell, Rio+20 is devoid of this deep sort of environmental ethos.
The elimination of an ecological mindset is due in large part to the ascendance of the concept of sustainable development. I maintain that the use of sustainable development by the international community as the major organizing principle for international environmental policy and law is the main reason why, from an environmental protection point of view, the results of Rio+20 will almost certainly be disappointing. Indeed, I argue that the use of sustainable development as our pole star for the last 25 years helps show why, despite the enormous proliferation of international environmental norms since 1972, almost all environmental indicators continue to be in decline and contain some deeply disturbing prognostications. To study UNEP's authoritative Global Environmental Outlook online data portal is to worry deeply about the prospects for posterity and to realize that we are--to invoke the title of Richard Falk's path-breaking 1972 text--still this endangered planet.
To explain my position: it seems clear to me that economic growth has become the not-so-"secret beating heart" of international environmental policy (2) and lies behind the law's apparent inability to effectively protect the global environment. The cult of economic growth, like Toynbee's cult of sovereignty, is a major religion of humankind, and its god demands human sacrifice. In the realm of global environmental protection, the priorities of economic growth have become ascendant through a perversion of the concept of sustainable development rapidly embraced by states of every stripe following its detailed elaboration by the World Commission on Environment and Development in 1987 in its well-known report, Our Common Future.
One of my brilliant former students, Sundhya Pahuja, in her book Decolonizing International Law (a richly deserving winner of this year's ASIL Certificate of Merit), illuminates how economic growth has "colonized" international law, including international law in the field of sustainable development. One central argument that Pahuja makes is framed around this dominating influence of "economic growth." The "cowboy economy" described by Kenneth Boulding in his well-known 1966 essay "Economics of the Coming Spaceship Earth" is still alive and well for Pahuja. Production and growth remain unqualified goods that...