MEANING, DEFINITION AND HISTORICAL EVOLUTION

OF THE CONCEPT OF SUSTAINABLE DEVELOPMENT

2. 1. Introduction

Scientific and technological development and industrialization on the one hand;

poverty on the other has been witnessed destruction of the environment in the Mother

Earth. The traditional international law describes that both the sovereign right of state to

exploit resources as well as principle of good neighbourliness. However, the present status

of environmental degradation is seriously threatening the very survival of human beings.

Considering integration of trade and environmental issue is need of the hour there are

serious measures are adopted nationally, regionally and internationally. In the early 1990 to

integrate the trade and developmental measures the concept of Sustainable Development

was adopted; that ensures fairness and opportunities for dignified life for all without

further destroying recklessly the word’s finite resources of both present and future

generation. This raises a serious doubt that the concept of Sustainable Development is a

complementary or contradictory to conserve the resources. To resurrect the mandate in

achieving sustainability in international law; this chapter is covers introduction, the

Meaning and Definition of the concept of Sustainable Development, various dimensions of

Sustainable Development. This chapter also traces the evolution of the concept of

Sustainable Development both customary and modern international law in detail and its

bindingness of the concept of Sustainable Development and conclusion. Let us have a

detail account of the chapter.

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2. 2. Meaning and Definition

The concept of “sustainability” and “Sustainable Development” is a catch word for

the policy makers both at the national and international arena that are not self-evident. The

concept sustainability originates from the Latin word “sustinere” which means “to hold

up”, “to endure”. Webster’s New Collegiate Dictionary1 describes sustainability as “to

give support” to “to keep up”. Chambers 21st Century Dictionary defines “Sustainable” as

capable of being sustained said of economic development and capable of being maintained

at a set level.2 Cambridge English Dictionary defines, “Sustainable” is also used to refers

to a way of suing natural products so that no damage is cause to the environment.

“Sustainability” using the resources in a way that does not cause environmental damage.3

The World Conservation Strategy (WCS) although not define the concept of

Sustainable Development. However, the WCS describes that “living resources

conservation improve the human conditions in an environmentally sustainable way.”4

Sustainable Development is defined as using living resources in a manner that ‘does not

exceed their natural capacity for regeneration’ as using natural resources in or manner

which ensures the preservation of the species and ecosystem for the benefit for future

generations.5 For the first time, World Commission on Environment and Development

1 Webster’s New Collegiate Dictionary, (Third Edition, Humngry Mints Inc., New York, 2008), p. 1478 2 Chambers 21st Century Dictionary, (Revised Edition, Allied Publishers, Mumbai, 2007), p. 1425. 3 Cambridge International Dictionary of English, (First Published, Reprinted, Cambridge University

Press, Cambridge, 2005), p. 1472. 4 World Conservation Union, World Conservation Strategy, Living Resource Conservation for

Sustainable Development, prepared by UNEP, IUCN and WWF, (Gland, Switzerland, 1980), (1991). 5 World Charter for Nature, 1982,UN A/Res/37/7, UNEP GC Res. 14/4, 37th Session, October 28, 1982

reprinted in 22 ILM 455 (1983).

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(WCED), chaired by Brundtland submitted a report Our Common Future. The Report

defines the concept of Sustainable Development as,6

“Development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.

The Concept of Sustainable Development contains the 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.7 Caring for the Earth

defines8

“Sustainable Development as “improving the quality of human life while living within the carrying capacity of supporting ecosystem”.

An eminent environmentalists Dr. M. S. Swaminathan defines

“Sustainable Development implies a future in which standard of life is improved would wise through economic development where local environment and biosphere are protected and science is mobilized to create new opportunities for human progress.9

Abdul Kalam remarks “Sustainable Development does not imply absolute limits to growth and it is not a new name of environmental protection. The concept leads a unique meaning to development and sets an integrated target for the measurement

6 In 1983, the General Assembly of the United Nations, set up a Commission, headed by Norway’s Prime

Minister, Gro Harlem Brundtland, to examine the state of World Environment and Development, beyond 2000 and also World Commission on Environment and Development, ‘Legal Principles for Environmental Protection and Sustainable Development’, 25 ILM 494 (1986).

7 World Commission on Environment and Development, Our Common Future, (Oxford University Press, London, 1987), p. 7.

8 Caring for the Earth: A Strategy of Sustainability, 1991, prepared by UNEP, IUCN and WWF, (Gland, Switzerland, 1991), p 211.

9 Dr. M. S. Swaminathan, “Focus-sustainable Growth”, Survey of the Environment, The Hindu, (1992).

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of development which has a combination of parameters including economic status, poverty, education, health, women empowerment, harmony, physical connectivity and environmental aspects.”10

Raymond defines “the most object and potentially measurable criteria for

Sustainable Development is the preservation of the productivity and the full functioning of

the resource base.”11 K.Parikh defines, Sustainable Development may be defined as, “the

preservation of the reduction possibilities of an economy to provide the some goods and

services obtained from the state of nature.”12 Paul Elkins Observes,13

“there is literally no experience of an environment ally sustainable industrial economy, anywhere in the world, where such sustainability refers to a non-depleting stock of environmental capital. It is therefore not immediately apparent that, on the part experience only, the term Sustainable Development is any more than an oxymoron”.

Pearce defines Sustainable Development as “a situation in which the development

vector that is, the vector of desirable social objectives that include access to resources, as

well as increases in real income per capita, improvement in health and nutritional status,

educational achievement fairer distribution of income and increases in basic freedom does

not decrease over time.”14 Stephen Viederman, emphasizes that

“sustainability is a vision of the future that provides as with a road map and helps to focus our attention on a set of values and ethical and moral principles by which to guide our actions, as individuals and in relation to

10A. P. J. Abdul Kalam, & Srijan Pal Singh, PURA: Innovative Solutions Towards Sustainable

Development, (Penguin Books, New Delhi, 2011), p. 129; See also L. M. Sharma, “International Action Plan (Agenda 21) for Sustainable Development,” 5 Comp. L. J. (1998), pp 1-13 at .3.

11 Ct. M.V. Joshi, Theories and Approaches of Environmental Economics, (Atlandic Publishers, New Delhi, 2001), p 35.

12 ibid 13 Ct. Danies Goult, “Authentic Development: Is it Sustainable?” (A Sustainable World, IUCN, The World

Conservation Union,1995), pp 44-59 at 44. 14 David Pearce, Edward Barbier and Anil Markandeya, Sustainable Development: Economics and

Environment in the Third World, (First Edition, Reprinted, Earth Scan, London, 1990), p. 2-3.

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the institutional structures with which we have contact – governmental and non-governmental, work relations and other”. 15

More generally, Conway understands sustainability as “the ability of a system to

maintain productivity in spite of a major disturbance such as that caused by intensive

stresses or a large perturbation. Lack of sustainability may be indicated by declining

productivity. In environmental politics, it is considered that “[s]ustainable development, if

it is not to be devoid of analytical content, means more than seeking a compromise

between the natural environment and the pursuit of economic growth. It means a definition

of development which recognises that the limits to sustainability have structural as well as

natural origins.”16

“[I]t simply means a form of economy that does not undermine the capacity of the earth and all its component parts to provide both nurture and the basic resource needs for all living matter, including human beings.” 17

Lipschutz, inspired by the common characteristics identified in the various existing

definitions in environmental politics, suggests the following definition of Sustainable

Development:

“a broad notion that human consumption of resources and environmental services must be sustainable and should not exceed the capacity of the biosphere/environment -possibly in conjunction with technology and social organisation- to supply those resources or absorb waste products. That is, `natural' stocks and flows of goods and services must not be degraded or damaged to the point that they collapse or disappear. At the same time the concept of Sustainable Development implies some degree of improvement in

15 Stephen Viederman, Knowledge for Sustainable Development what we need to know? (A Sustainable

World, IUCN, - The World Conservation Union, 1995), pp 36-43 at 37. 16 Redclift, Sustainable Development: Exploring the Contradictions, (First Edition, Routledge, London,

1987) p. 199. 17 O’Riordan, “The New Environmentalism and Sustainable Development”, 108 The Science of the Total

Environment (1991), pp 5-9 at 7.

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human standards of living -not necessarily unfettered economic growth in the classical sense, but some sort of growth, nonetheless”.18 In sum, “Sustainable Development “ensures continuing growth and progress for humankind, whilst arresting and changing those processes which cause irreversible damage to the environment (... ) over all, it exposes a concern which focuses on human need rather than human want”.19

Abbot has described the concept of Sustainable Development favours open

economic relations and economic growth, because poverty is a prime cause of

environmental degradation and growth provides greater resources and environmental

protection. At the same time, the basic notion is that economic growth must be sustainable

for the benefit of future generations.20

Sustainable Development is about being fair to the future. It is about leaving the

next generation a similar, or better, resources endowment than that which the present

generation inherited. The concept is honouring the environment's limited capability for

receiving waste. It means using exhaustible resources wisely so that, as they are depleted,

the profits from their use are reinvested in technology and other forms of capital wealth.21

Blowers defines “This involves wholesale shift from resource exploitation to conversation,

18 Lipschutz, Wasn't the Future Wonderful - Resources, Environment, and the Emerging Myth of Global

Sustainable Development?, ‘2 Colo. J. Int'l Envtl. L. & Pol'y (1991), pp 35-54 at 38. 19 Smith, “Global Environmental Issues”, in Smith and Warr (Eds.,) Global Environmental Issues, (Hodder

& Stoughton, London, 1991), p.206. 20 K. Abbot, “Economic Issues and Political Participation: The Evolving Boundaries in International

Federalism” 18 Cardazo Law Review (1996-97), pp 971-982 at 979. 21 Pearce, “An Economic Perspective on Sustainable Development, 2 Development Journal of SID (1989),

pp 17-22 at 17.

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a redistribution of wealth from rich to poor in order to meet the needs and withdrawal of

those activities which could harm future generation.”22

In 1974, President of the World Bank Mc Namara has elaborated “there are really

no material obstacles to a sane, manageable response to the world’s developmental needs.

The obstacle lie in the minds of men, we have simply not thought long enough and hard

enough about the fundamental problems of the planet” and described environmental

sustainability is a big challenge.23

From the overall exposition, the concept of Sustainable Development is also

understood not clearer than its nature. However, WCED's definition offers a satisfactory

and well accepted description more generally on environmental limits and restrictions.24

Hence, the Brundtland Report identified critical objectives for environment and

development policies reflected in the concept of Sustainable Development:

(i) Reviving growth and changing its quality,

(ii) Meeting essential needs for job, food, energy and sanitation

(iii) ensuring a sustainable level of population,

(iv) Considering and enhancing the resource base,

(v) Reorienting technology and managing risk and

(vi) merging environment and economics in the decision making.

22 Supra note 11. 23 Aarti Dhar, “Environmental Sustainability a big Challenge”, The Hindu, (11 April, 2007), p. 9. 24 Patricia W. Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment, (Third

Edition, Oxford, London, 2009), p. 119.

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The concept of Sustainable Development is broad but vital focus on the

conservation of resources in a cleaner environment for a better quality of life for the

posterity. The concept requires present generations to protect the natural, man made and

human capital resources that they leave behind enough of these for the future generations

to be able to attain at least the same level of social well-being as enjoyed by themselves.25

The concept eliminates the dichotomy between economic growth and environmental

protection26 that necessitates in formulating environmental sustainability policies by states

according to their economic, political or legal perspective as principles directeurs.

Regardless the precise definition of WCED, the concept of Sustainable

Development clearly sets forth definite legal rules as operational goals or obligations;27

such as liberty, justice and equity into the debate. The concept is based on the belief that

human progress must conform to basic ecological precepts and human needs in order to

endure.28 Human rights lawyers for instance, focus more particularly on the aspect of

equity within and between generations, and on the satisfaction of basic human needs,

25 Ramprasad Gupta, “Human Well-Being and Sustainable Development”, XXXVII Econ. & Pol. Wkly

(1993), pp 4289-4294 at 4291; See also A. J. Fair Clough, “Environmental and Natural Resources Problems Their Economic, Political and Security Implications”, Washington Quarterly (Winter, 1991) p. 81; Ginther Handl, “Environmental Security and Global Change”, 1 YbIEL (1990), pp 3-37 at 32; Philippe Sands, ‘International Law in the Field of Sustainable Development’, 65 BYbIL (1994), pp 303-381 at 306.

26 Article 2, 31 ILM 822 (1992); Preambulara para. 3, 32 ILM 1072 (1992); and Introductory para. of Bergen Ministerial Declaration on Sustainable Development, 16 May 1990, UN Doc. A/CONF. 151/PC/10.

27 Malanczuk, “Sustainable Development: Some Critical Thoughts in the Light of the Rio Conference”, Ginther et al (Eds.,), Sustainable Development and Good Governance, (Martinus Nijhoff, London, 1995), Chap. 2; Supra note 24, p 115; Booldield, ‘”Environmental Stability with Development: What Proposals for Research Agenda’ in Stokke (Edn.), Sustainable Development, (Frank Cass, Lonodn,1991), p.42.

28 Lamont C. Hempel, Environmental Governance, The Global Challenge, (First Edition, Affiliated East-West Press Pvt. Ltd., New Delhi, 1998) p. 40; James Cameron, Compliance Citizens and NGOs, in James Caemeron and Peter Roderick, (Eds.,) Improving Compliance with International Environmental Law, (First Edition, Earthscan, London, 2006), pp 29-42.

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including the need for a clean and healthy environment.29 Ksentini Report reveals that

environmental damage has direct effects on a series of human rights including, inter alia,

the right to life, to health, and to a satisfactory standard of living.30 Farbara has quoted the

Ksentini Report the understanding and relationship between environment and human rights

in global in character of environmental problems and their human aspects has made it

possible to move ‘from environmental law to environmental rights’.31

The Report of the ILA Committee on NIEO describes that “Sustainable

Development is not a fixed state of harmony but rather a process of change in which the

exploitation of resources, the divesting of investment, the orientation of technological

development and institutional change, is made consistent with future as well as present

needs.”32 Such Sustainable Development in the agriculture, forestry, industry, energy and

genetic resources is environmentally non-degrading, technically appropriate, economically

viable, ecologically sustainable and socially acceptable.33 This has also helped in realising

the various dimensions of the concept of Sustainable Development.

29 Michael R. Anderson, Human Rights Approaches to Environmental Protection: An Overview, Alan Boyle

and Michael Anderson (Eds.,), Human Rights Approaches to Environmental Protection, (Calendran Press and Oxford, 1996), pp 1- 23 at 2; in Alan Boyle and Michael Anderson (Eds.,), pp 25-41; Alan Boyle and Michael Anderson, (Eds.,), pp 43-69; Nagendra Singh, “Sustainable Development as a Principle of International Law” in De Waart (Eds.,) International Law and Development, (Martinus Nijhoff, London, 1988), pp 1-12; Sachs, A. “Eco-Justice: Linking Human Rights and the Environment” World Watch Paper (1995), pp 121-127; see also William Andrew Shutkin, “International Human Rights Law and the Earth: The Protection of Indigenous Peoples and the Environment” 31 Va.J.Int’l.L.J. (1990-1991), pp 479-511.

30 The Special Rapporteur’s Final Report, UN Doc. E/CN.4/Sub.2/1994/9; See also Stephen J. Turner, A Substantive Environmental Right, (First Edition, Wolters Kluwer, The Netherlands, 2009), p. 19.

31 Farbara and Popovic, “Law-Making in the United Nations: The UN Study on Human Rights and Environment” 34 RECIEL (1994), pp 197-207 at 202.

32 ILA Report of the 65th Conference, 21-26 April 1992 (Cairo, 1993), 407 at para. 1.12. 33 Sustainable Agricultural Production: Implication for International Agricultural Research, Technical

Advisory Committee, GIAR, FAO, Research Technical Report No. 4 (1989), p. 43; See also L. M. Sharma, “International Action Plan (Agenda 21) for Sustainable Development, 5 Comp. L J. (1998), pp 1-13 at .3.

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2. 3. Dimension of Sustainable Development

The concept of Sustainable Development is not a new prior to the UNCED.34 The

Earth Charter was remarkably intended to be a crystallization of new thinking in the form

of a set of concrete objectives and strategies for achieving sustainability. Although some

scholars have recognized, environmental and economic dimensions, there are other

dimensions of the sustainability also exists.35 Though, some scholars have recognized only

four dimensions of sustainability levels.36 There are many dimensions of sustainability has

been accepted at all level are described as below; such as,

1. Geographical Sustainability

2. Biological Sustainability

3. Ecological Sustainability

4. Social Sustainability

5. Cultural Sustainability

6. Demographic Sustainability

7. Economic Sustainability

Considering the limitation of the present study, let us examine economic, social and

environmental sustainability in detail.

34 Stockholm Declaration, June 16, 1972,UN Doc. A/CONF 48/74 and corr. 1., 11 ILM 1416 (1972). 35 UN GA Res. 66/288, 11 September, 2012, available at sustainabledevelopment.un.org/rio20.html, last

visited on 20.11.2012; Xigen Wang, “On the Right to Sustainable Development: Foundation in Legal Philosophy and Legislative Proposals”, in Stephen P. Marks (Edn.,), Implementing the Right to Development - The Role of International Law, (Friedrich-Ebert-Stifung (FES), 2008), pp 39-46; Arvind Jasrotia, “Environmental Protection and Sustainable Development: Exploring the Dynamics of Ethics and Law”, 49 JILI (2007), pp 30-59 at 38; V. Rajya Lakshmi, “Sustainable Development: Need for a Proper Perspective”, CULR (2003), pp 478-492 at 483.

36 Cancado Trindade, “Relations Between Sustainable Development and Economic, Social and Cultural Rights: Recent Developments” in Al-Nauimi & Meese (Eds.,), International Legal Issues Arising Under the Decade of International Law, (Martinus Nijhoff, London, 1995), p.1051; see gen. Dr. A. David Ambrose, “Sustainable Development of Natural Resources and Environmental Duties in International Law,” 4 SBRRM Journal of Law (1997), pp 12-38.

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2. 3. 1. Economic Sustainability

Economic sustainability depends upon the relationship between benefits and costs.

It is more easily measurable than social sustainability because it can be defined in

numerical terms, primarily units of currency. Economic sustainability is conditioned

mainly by the availability and cost of inputs. The resources of an economic process are the

need to use in ways that do not damage the environment. The imperative to reduce costs

must not be an excuse to affect the long term economic as well as ecological

sustainability.37 Economic sustainability is constrained anything that upsets a viable

balance between benefits and costs. In realty, national policies play a predominant role in

achieving economic sustainability.38

2. 3. 2. Social Sustainability

Social sustainability reflects the relationship between development and current social

norms. It is also significant that we live in a world of fast moving social and economic

change. If any social sustainability will arise or which would breach existing social values

the people will oppose or resist that activity. This leads clearly to the question of how to

define the social limits that must be respected to achieve sustainability.39 These social

norms are based on religion, tradition and custom. However, a social limit is hard to

37 Principle 15, UNCED, 1992 Rio Declaration, 14 June 1992, UN Doc. A/Conf.151/26, reprinted in 31 ILM

874 (1992). 38 Many principle of the Rio Declaration significantly emphasises that the mandate of the national policies in

achieving effective conservation of resources both for present and future generations. See Principles 11, 12, 13, 14, 15, 16 and 17, Supra note 37.

39 See gen. John Ferris, Carol Norman and Joe Sempik, “People, Land and Sustainability: Community Gardends and the Social Dimension of Sustainable Development” 35 Social Policy and Administration (2001), pp 539-568.

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define, measure and evaluate. Social sustainability is impossible to be codified in law,

and social limits. For this type of development to become a reality at the global and

regional level action and respect of all states is required.

2. 3. 3. Environmental Sustainability

Ecological degradation is considered as the only root cause for socio-cultural

erosion. Environmental Sustainability is presented as the priority goal of the concept of

Sustainable Development, and is distinguished from economic and social sustainability.

The effect of deterioration of resources has seriously threatening the life supporting

systems and often causes conflict to security40 including environmental security41 both at

the time of peace as well as war.42

40 Norman Myers, “The Environmental Dimension to Security Issues”, 6 The Environmentalists (1986), pp

251-257; See also Environmental Protection and Sustainable Development Legal Principles and Recommendations, adopted by the Experts Groups on Environmental Law on the WCED, (Graham & Trotman/ Martinus Nijhoff, Lonodn, 1986); J. Rifkin, Biospheric Politics: A New Consciousness for a New Century, (Crown, New York, 1991), p. 2; Ginther Hanld, “Environmental Security and Global Change: The Challenge to International Law”, 1 YbIEL (1990), pp 3-33 at 24; Daniel Deudney, “Environmental Security: A Critique” in Daniel Deudney and Richard Mathew (Eds.,), Contested Grounds: Security and Conflict in the New Environmental Politics, (State University of the New York Press, New York, 1999), pp 187-217 at 215; Simon Dalby, “Environmental Insecurities: Geopolitics, Resource and Conflict”, XXXVIII Econ. & Pol. Wkly. (2003), pp 5073-5079; Assetto & Bruyninickx, “Environmental Security and Social Conflict: Implications of the Gabcikovo-Nagymaros Controversy”, in Blake (Eds.,), International Boundaries and Environmental Security: Frameworks for Regional Cooperation, (Kluwer Law International, 1997), Chap. 20.

41 Lorraine Elliott, The Global Politics of the Environment, (First Edition, Macmillan, London, 1998), Ch. 9; Alhaji B. M. Marong, “From Rio to Johannesburg: Reflections on the Role of International Legal Norms in Sustainable Development” 16 Geo. Int’l Envtl. L. Rev. (2003-2004), pp 21-76 at 40-42; Moumita Das and Padmini Singh, “Sustainable Development and Environmental Law: India – Australia Experience”, 45 IJIL (2005), pp 243-254 at 249; see also Ginther Handl, “Environmental Security and Global Change”, 1 YbIEL (1990), pp 3-37.

42 See Principle 24, Supra note 37; See also Article 73, 8 ILM 679 (1969); Hague Convention Concerning the Laws and Customs of War on Land, 18 October, 1907 in force 26 January 1910; Hague Regulations to the International Convention with Respect to the Laws and Customs of War by Land (Hague II), 1899, available at www.icrc.org/ihl, last visited on 12.12.2012; 16 ILM 1391 (1977); ENMOD Convention, 1108, U.N.T.S 151; Nagendra Singh, “Right to Environment and Sustainable Development As a Principle on International, Law”, 29 JILI (1967), pp 289-312 at 291; and Dr A. M. Mannion, “The Environmental Impact of War & Terrorism”, Geographical Paper No. 169, June 2003.

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The Millennium Development Goals (MDGs) also widely accepted environmental

security is one of the leading international community’s agenda.43 Irrespective the

conservation of resources, environmental sustainability is now widely recognized as a

mandate in an international arena. It should maintain, recover and restore the natural

resource base, as finite resources.44 Sustainable Development described as one of the

means for reaching that goal. An environmental sustainability means, it must not degrade

the diversity and biological productivity of ecosystems nor ecological processes and vital

systems. Environmental sustainability challenges the environmental security45 that has also

been equated with national security.”46 Surprisingly, Since Rio environmental

sustainability expressed in obligatory terms.47 Two distinct features of environmental

security are:

(i) the environmental causes of conflict, i.e. environmental factors behind potentially

violent conflicts; and

(ii) the impact of environmental degradation on overall political economy, health and

life of the people.

43 United Nations Millennium Development Declaration, GA Res. 55/2, UN Doc.A/RES/55/2, 18 September,

2000, available at http:// www:unmillenniumproject.org/goals/index.htm last visited on 23.07.2012. 44 Dr. S. A. K. Azad, “Sustainable Development and Environment,” 28 Indian Bar Review (2001), pp 167-

174 at 168; See also Shamsher Singh, “Sustainable Development – Constitutional and Legal Developments in India”, available at www.indialaw.com last visited on 26.04.2012.

45 Sverre Lodgaard, “Environmental conflict Resolution”, Paper Presented at the UNEP meeting on Environmental Conflict Resolution, Nairobi, (30 March 1990); see also Andrew B. Whitford and Karen Wong, “Political and Social Foundations for Environmental Sustainability” 62 Political Research Quarterly (2009), pp 190-204.

46 Maurice F. Strong, Preparatory Committee, March 5, 1990; Peter H. Sand, “UNCED and the International Environmental Law,” 3 YbIEL (1992), pp 3-17 at 14; Sand, “International Law on the Agenda of the United Nations Conference on Environment and Development: Towards Global Environmental Security”, 60 Nordic J. Int’l L. (1991), pp 5-18; Norman Myers, “The Environmental Dimension to Security Issues”, 6 The Environmentalists, (1986), p. 251.

47 In the late 1990s the multilateral environmental agreements used should and shall.

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2. 4. Origin and Development

Until the late 19th century, there was no evidence to qualify any trade and

development which led to the destruction of resources areas beyond national jurisdiction.48

Any environmental pollution and its consequences are considered as a domestic and

national issue. In the late 1940s, the formation of UN on the one hand the GATT on the

other help the state to exploit their resources to carry out trade and developmental activities

with limited restrictions.49 Similarly, in the early 1960s, the UN in its General Assembly

Resolution conferred an unfettered freedom and sovereignty over natural resources50 even

beyond the territorial limit.51 The Cocoyoc Declaration also remarkably stressed that the

states sovereignty in exploiting their resources.52 When a state is commited in quantifying

their economic status and with right to self-determination has resultant many irreversible

environmental problems even beyond the national boundaries and created a serious threat

to the human survival.

48 Principle 21 of the Stockholm Declaration, June 16, 1972UN Doc. A/CONF 48/74 and corr. 1., reprinted in

11 ILM 1416 (1972); Philippe J. Sands, “The Environment, Community and International Law”, 30 Harv. Int’l L. J. (1989), pp 393-420, at 406. And Tarun Jain, “Transboundary Harm: An Environmental Principle in International Context”, VII ICFAI University Journal of Environmental Law (2008), pp 10-22 at 13.

49 Shyam Divan Armin Rosencranz, Environmental Law and Policy in India, Cases, Materials and Statutes, (Second Edition, Oxford, New Delhi, 2008), p.590.

50 Permanent Sovereignty Over Natural Resources, UNGA Res. 1803, (XVII), 14 December, 1962, 17th Session, Supplement No. 17 (A/5217); 2 ILM 223 (1963); JN Hyde, “Permanent Sovereignty Over Natural Resources and Wealth” 50 AJIL (1964), pp 854-876; UNGA Res. 1314 (XIII), 1958.

51 United Nations Convention on the Law of the Sea, 10 December 1982, 21 ILM 1261 (1982). 52 UNEP/UNCTAD Symposium on Patterns of Resource Use, Environment and Development

Strategies, Cocoyoc, Mexico 12-18 June 1974 available at http:www.unep.org/geo/geo3/English/080.htm last visited on 24.04.2012.

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The global environmental movement had understood the interdependence of the

people and the environment53 and established an honourable place in the multilateral

trading system54 a serious attempt was made for future survival of human being.55 It is

also believed that the UN has also contributed most noteworthy an appropriate

environmental management and planning.56 For the first time, in the early 1970s,

environmental issues began as a growing part of public international law;57 in the late

1980s the concept of Sustainable Development has emerged in the contemporary history of

53 S. Bhatt, International Environmental Law, (A. P. H. Publishing Corporation, New Delhi, 2007), p.38-

39; Dr. Krushna Chandra Jena, “Ecological and Environmental Protection Movements: A Brief Conspectus,” AIR (J) (2005), pp 288-294 at 292.

54 Malcolm N. Shaw, International Law, (Fifth Edition, Cambridge University Press, Cambridge, 2004), p. 754; Mark Halle, “The WTO and Sustainable Development”, available at http://www.iisd.org/publications/pub.aspx?id=779, pp 395-405 at 405 last visited on 24.07.2012.

55 I. A. Shearer, Starke’s International Law, (Eleventh Edition International Student Edition, Oxford Univesity Press, Oxford, 1994), p.362; David Hughes, Environmental Law, (Second Edition, Butterworths, London, 1992), p. 14; M. C. Cordonier Seggar and A. Khalfan, Sustainable Development Law, (Oxford University Press, Oxford, 2004), pp 45-50; See also for general discussion D. French, “International Law and Policy of Sustainable Development”, Manchester: Manchester University Press, 2005); J. F. Weiss and Schrijver, (Eds.,), International Law and Sustainable Development: Principles and Practice, (Martinus Nijhoff, Leiden, 2004) and Alan Boyle and D. Freestone,, (Eds.,) International Law and Sustainable Development: Past Achievements and Future Challenges, (Oxford University Press, Oxford, 1999).

56 12 ILM 1085 (1973); 26 ILM 1529 (1987); 26 ILM 1550 (1987); Arts. 8 (g), 10 (a), 11, 12 and 13 (b), 31 ILM 822 (1992); 33 ILM 1332 (1994); 28 ILM 657 (1989); 31 ILM 1330 (1992); 39 ILM 1027 (2000); Konard Von Moltke, “The Last Round: The General Agreement on Tariffs and Trade in Light of the Earth Summit” 23 Envtl. L. (1993), pp 516-534 at 519; Daniel C. Esty, “Brindging the Trade-Environment Divide”, 15 (3) Journal of Economic Perspectives (2001), pp 113-130 at 121; Jose Maria Figueres “Trade and Environment and the World Trade Organisation: The Need for a Constructive Dialogue” in Gray P. Sampson (Edn.,), The Role of World Trade Organisation In Global Governance, (University Press, Tokyo, 2001); Sara Dillon, “A Farewell to Linkage: International Trade Law and Global Sustainability Indicators” 55 Rutgers L. Rev. (2002), Gray P. Sampson & W. Brandee Chambers (Eds.), Trade, Environment and the Millennium, (Second Edition, University Press, Bookwell, Tokyo and New Delhi, 2002); Donald McRae, “Trade and Environment: Competition, Cooperation or Confusion”? 41 Atla. L. Rev. (2003), pp 745-760; Aaron Cosbey, “Lessons Learned on Trade and Sustainable Development” (IISD, Winnipeg, 2004); Aaron Cosbey, A Capabilities Approach to Trade and Sustainable Development: Using Sen’s Conception of Development to Re-Examine the Debates, (Winnipeg: IISD, 2004); Anupam Goyal, The WTO and International Environmental Law, (First Edition, Oxford University Press, New Delhi, 2006), p. 46.

57 Supra note 24, p 44; S. Bhatt, Environmental Protection and Sustainable Development, (A.P.H. Publishing Corporation New Delhi, 2004), p. 23; John H. Jackson, “Sovereignty-Modern: A New Approach to an Outdated Concept”, 97 AJIL (2003), pp 782-802.

45

civilization.58 The various MEAs expressly or impliedly reemphasise the need for an

effective conservation of resources for the better of present and future generations.59 To

demarcate the development and the conservation of resources, in the early 1980, World

Commission on Environment and Development was set up.

Conservation of resources to achieve environmental sustainability by the national

governments subsequently endorsed universal level at Rio.60 Agenda 21 in its preamble

refers ‘the need for a global partnership for Sustainable Development’, and most of its

provisions are intended to promote the concept.61 WSSD also describes methods and

means for implementing the mandate to achieve environmental Sustainability.62 There are

substantial efforts in order to ensure the timeless prosperity of mankind in terms of both

the ecological and economic development of international environmental law.63

This chapter is also tracing an evolution of the concept of Sustainable Development

both customary law and modern law perspective.

58 Elli Louka, International Environmental Law, Fairness, Effectiveness and World Order, (First

Edition, Cambridge University Press, Cambridge, 2006), p. 16. 59 See Development and Environment: Report and Working Papers of a Panel of Experts Convened by the

UNCHE (Founex, 1971); Supra note 5, Ch. 2 and 3, endorsed by UNGA Res. 42/186 and 187 (1987); Principle 3, 8 and 12, Supra note 37; See also Dr. A. David Ambrose, “Sustainable Development of Natural Resources and Environmental Duties in International Law,” 4 SBRRM Journal of Law (1997), pp 12-38 at 37; New Delhi Principles of International Law Relating to Sustainable Development, 2 April 2002, 2 Int’l Envt’l Agreements: Pol. L & Econ. (2002), pp 211-216; ILA Report of the Seventeenth Conference, New Delhi (London, 2002). Available at http://www.ila-hq-org last visited on 24 May 2012.

60 Markus W. Gehring and Marie-Claire Cordoniew Seggar, (Eds.,) Sustainable Development in World Trade Law, (Kluwer Law International, The Netherlands, 2005) p. 5; Supra note 37; and 33 ILM 1332 (1994).

61 UNGA Res. 47/191 (1992); See Osborn and Bigg, Earth Summit II: Outcomes and Analysis, (London, 1998), p. 60; See also Programme for Further Implementation of Agenda 21, UN GA Res. S-19/2, 28 June 1997, 36 ILM 1639 (1997).

62 See UNGA Res. 55/1999; Report of the World Commission on Sustainable Development, Sep. 2002, U. N. Doc. A/CONF. 199/20.

63 Anupam Goyal, The WTO and International Environmental Law, (First Edition, Oxford University Press, New Delhi, 2006), p. 57.

46

2. 4. 1. Customary International Law on Environmental Protection

Customary international law sine qua non offers responsibility to the state to solve

transbounary environmental problem.64 For the first time, in 1893 the Behring Sea Seals

case65 the tribunal observed that the states had authority to adopt measures for the

protection marine mammals in the high seas. The Oder66 and Meuse,67 the PCIJ examined

the extent of jurisdictional reach of the international commission to regulate the use of the

river. The judicial decisions demonstrate the importance of the principle of equity in the

development of international law.68 The equity principle is certainly a fluid principle.

Despite its fluidity, the principle has played legitimacy in the consumption of common

resources.

In the early 1940s, the classic adjudication,69 affirmed that the principle of “Good

Neighbourlines. In Lac Lanoux case,70 the court established the importance of prior

consultation before undertaking a project that has transboundary effects. Such a principle

has been repeated in a number of international instruments, including the Convention of

Environmental Impact Assessment (EIA).71 The tribunal further stated:

64 Philippe J. Sands, “The Environment, Community and International Law”, 30 Harv. Int’l L. J. (1989),

pp 393-420, at 399 and Ian Brownlie, “A Survey of International Customary Rules of Environment Protection”, 13Nat. Resources J (1973), pp 9-18 at 13.

65 Pacific Fur Seal Arbitration, 15 August, 1893, 1 Moore’s Int’l Arb. Awards, 755. 66 PCIJ Ser, A. No. 23, 10th December, 1929. 67 PCIJ Ser. A/B, No. 70 28th June 1937. 68 Ian Brownlie, Principles of Public International Law, (Seventh Edition, Oxford University Press,

Oxford, 2008), p. 25; Manfred Lachs, “The Challenge of the Environment”, 39 ICLQ (1990), pp 663-669 at 667.

69 Trail Smelter (U.S. v. Canada), 3, R. Int’l Arb. Awards (1938 & 1941), 1905; See gen Alfred P. Rubin, “Pollution by Analogy: The Trail Smelter Arbitration” 50 Or. L. Rev. (1970-1971), pp 259-282.

70 Lake Lanoux Arbitration, 12 R Int’l Arb. Awards. (1957), 281. 71 United Nations Convention on Environmental Impact Assessment in a Transboundary Context, 25

February 1991, 30 ILM 800 (1991), (in force 10 September 1997).

47

“the rule according to which States may utilize the hydraulic force of international watercourses only on condition of a prior agreement between the interested States cannot be established as a custom, nor even less as a general principle of law.”

In the aftermath of the Lac Lanoux case, a new bilateral treaty was signed between

France and Spain.72 This agreement authorises the state to take all necessary measures to

resolve the situation including making reparations. In Nuclear Test case,73 the ICJ

emphasised that international environmental law does not specifically prohibit the use of

nuclear weapons but provides important environmental rules and principles international

humanitarian law. The court also underlined the importance of environmental

consideration in the principles of proportionality and necessity in the pursuit of armed

conflict.74 The Court also rejected the argument that the use of nuclear weapons infringed

on the right to life as stated in the Covenant on Civil and Political Rights.75 And declared

that erga omnes obligation to stop such testing. The Court also emphasized that:

“the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The environment is under daily threat and that the use of nuclear weapons could constitute a catastrophe for the environment. The existence of the general obligation of states to ensure that activities within their jurisdiction and control respect the environment of other states or of areas beyond national control is now part of the corpus of international law relating to the environment... And states must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives. Respect for environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality”.

72 16 ILM 242 (1976). 73 Australia v. France, New Zealand v. France, Interim Protection, (1973), ICJ Rep. 99 and 135 (Orders of

June 22): (1974), ICJ Rep. 253 and 257, 20 December, 1974. 74 Additional Protocol to the 1949 Geneva Conventions, 1977, 8 June, 1977,16 ILM 1391 (1977) (in force 7

December 1978) and ENMOD Convention, 1108, U.N.T.S. 151. 75 International Covenant on Civil and Political Rights, 6 ILM 368 (1967), UNGA Res. 2200A (XXI), UN

Doc. A/6316 (1966), 99 U.N.T.S. 171; International Covenant on Economic, Social and Cultural Rights, 6 ILM 360 (1967).

48

The early growth of international environmental issues is reflected in the large

body rules of customary law which apply bilaterally, regionally and globally.

Subsequently, the custom has characterized and accepted as a source.76 The environmental

issues also reflect international interdependence. The conditions which have contributed to

the emergence of International Environmental Law are two fold:

1. Environmental issues are accompanied by recognition that ecological

interdependence does not respect national boundaries, and

2. Issues previously considered to be matters of domestic sovereign concern

have international implications : The implications which may be bilateral,

sub regional or global can frequently only be addressed by international law

and regulation.77

One requirement of the test of custom is that a general recognition must be found

among nations that a certain practice is obligatory.78 Professor Ian Brownlie concludes in

a survey of the international customary rules of environmental protection that custom

“provides limited means of social engineering”.79 To him the limitations of custom,

evidence the need for the development of new institutions, standards and localized

regimes. As a result of the judicial decision on environmental protection the web treaty

law on environment increases.80

76 Statute of the International Court of Justice, Art. 38 (b), 59 stat. 1031, U.N.T.S. No. 993, 1976 UNYB),

1052; Anthea Elizabeth Roberts, “Traditional and Modern Approached to Customary International Law: A Reconciliation” 95 AJIL (2001), pp 751-797 at 759.

77 Philippe Sands, Principles of International Environmental Law, (Second Edition, Reprinted, Cambridge University Press, Cambridge, 2005), p 152.

78 Supra note 8. 79 Ian Brownlie, “A Survey of International Customary Rules of Environment Protection”, 13 Nat. Resources

J (1973), pp 9-18 at 13. 80 Geoffrey Palmer, “New ways to Make International Environmental Law”, 86 AJIL (1992), pp 18-29 at

24.

49

2. 4. 2. Modern International Law on Environmental Protection

The judicial decision on the one hand and the UNCHE on the other remark that

there are legitimate instances where transboundary harm is permitted, because many harms

that occur every day resulting from ordinary economic and other social activity occurs by

an accident, often unrelated to fault.81 This can help not only protecting the sovereignty

but also resolving conflicts between generations to share in the earth’s limited resources.

The UN Charter describes that no state is to violate the sovereignty of another state.82

Realisng the need for conservation of common resources between generations the

prominent contribution MEAs focuses on various strategies, such as planning,

management. At the turn, early in the century, there were relatively few multilateral or

bilateral international environmental agreements were concluded to protect commercially

valuable species.83 Environmental agreements are also facilitating navigation and

guaranteeing fishing rights. It is also interesting to note that, the subject-matter of

international environmental agreements has expanded significantly. Hoffman has describes

“in response to this demand, however, the United Nations General Assembly has fostered the development obligations of state with respect to the environment without concomitant attention to that part of international law-making that serves to build a structure of world environmental order, namely the development of secondary or functional rules of international law which exist to promote the practical realisation of the substantive or primary rules of international law defining the content of a state’s legal obligations”.84

81 Oscar Schachter, “Emergence of International Environmental Law” Journal of International Affairs,

(1991), pp 457-493 at 463; see gen. Supra note 79, p 27. 82 Art. 2 (1) and 4 of the United Nations Charter, Sanfrancisco, June 26, 1945, 67 UKTS (1946), 39 AJIL

Suppl. (1945), pp 190, (into force 24 October 1945). 83 Convention for the Protection of Birds Useful to Agriculture, 19 March, 1902; 4 IPE 1615, (in force 20

April 1980); Treaty for the Protection of Fur Seals, 7 July 1911, (in force 15 December 1911). 84 Kenneth B.Hoffman. ‘State Responsibility in International Law and Transboundary Pollution Injuries” 25

ICLQ (1976), pp 509-542 at.509.

50

The PSNR85 and RTD86 are the legal elements of the concept of Sustainable

Development. The sovereign right to exploit resources is not contemplating the customary

principle of international law. The UNCHE categorically reemphasise the international

responsibility87 to protect the territorial rights of neighbouring state88 whose prospects may

be jeopardized.89 There are issues relating to state responsibility.

Firstly, whether and to what extent a state is responsible for pollution damage

originating either within its own territory or from an entity subject to the jurisdiction and

cause damage outside its territory to another state or entity; and

Secondly, if there is such responsibility, under what principles of liability should

compensate or other damages provided to the victim.90

Today there are agreements to address environmental issues and effective

conservation of resources in all media; such as conventions relating to whaling practices,91

85 Supra note 51; O’Keefe, “The United Nations Permanent Sovereignty Over Natural Resources” 8 Journal

of World Trade Law (1974), pp 239 -282. 86 United Nations Declaration on Right to Development, 1986, 21 ILM 58 (1986), (in force 21 October

1986). 87 Francisco Orrego Vicunna, “State Responsibility and Remedial Measures under International Law: New

Criteria for Environmental Protection, in Edith Brown Weiss (Edn.,) Environmental Change and International Law: New Challenges and Dimensions, (United Nations University Press, Tokyo, 1992), Ch 5.

88 Dr. A. David Ambrose, “Transfrontier Environmental Protection: New Challenges and International Response”, Law and Social Problems, (1997-98), pp 71-87 at 71; See gen., M. Gandhi, “State Responsibility and International Environmental Law,” in Bimal N. Patel (Edn.,) India and International Law, (Koninklijke Brill N.V., The Netherlands, 2001), pp 223-247 and Ginther Handl, “Territorial Sovereignty and the Problem of Transnational Pollution”, 69 AJIL (1975), pp 50-76 54.

89 Environmental Protection and Sustainable Development Legal Principles and Recommendations, adopted by the Experts Groups on Environmental Law on the WCED, (Graham & Trotman/ Martinus Nijhoff, 1986).

90 Principle 13 and Principle 22, Supra note 34. 91 Convention on Preservation of Fauna and Flora in their Natural State, London, 8 November 1933; 172

U.N.T.S. 241, (in force 14 January 1936); Convention on Nature Protection and Wild Life Preservation, Washington, 12 October 1940, 56 Stat. 1354, 161 U.N.T.S. 193 (in force 30 April 1942); Convention on Regulation of Whaling, 24 September 1931, 155 U.N.T.S. 349, (in force 16 January 1935). International Convention on Regulation of Whaling, 2 December 1946, 161 U.N.T.S. 72, (in force 10 November 1948).

51

fisheries,92 birds,93 oil pollution in oceans,94 and agreements governing international

liability for nuclear damage,95 oil-pollution casualties,96 to civil liability for oil-pollution

damage,97 Convention on oil pollution in the North Sea,98 marine pollution,99 long range

transboundary air pollution,100 protection of the ozone layer,101 climate change,102

biodiversity,103 desertification,104 trade in endangered species of wild fauna and flora,105

transboundary movement of hazardous wastes and their disposal,106 industrial accidents,107

wetlands108 and so on.

It is interesting to note that, combating these problems states have accepted their

response to transboundary environmental problems through international agreements

which requires co-ordination among states.

92 161 U.N.T.S. 72. 93 International Convention for the Protection of Birds, Paris, 18 October 1950, 638 U.N.T.S. 186, (in force

17 January 1963). 94 International Convention for the Protection of Pollution of the Sea by Oil, London, 12 May 1954 3

U.N.T.S. 327; 704 U.N.T.S. 3, 9 ILM 359 (1970); 9 ILM 25 (1970) and 9 ILM 45 (1970), (in force 19 June 1958)

95 OECD Convention on Third Party Liability in the Field of Nuclear Energy, Paris 29 July 1960, 55 AJIL (1961), 1082, (in force 1 April 1968); 2 ILM 685 (1963); 1063 U.N.T.S. 265; 2 ILM 727 (1963); 25 ILM 1370 (1986) and 25 ILM 1377 (1986).

96 327 U.N.T.S. 3; 11 ILM 284 (1972). 97 12 May 1954, in force 26 July 1958, 327 U.N.T.S. 3. 98 30 ILM 733 (1990). 99 UKTS (1976) 43, 11 ILM 1295 (1972); ibid. 100 18 ILM 1442 (1979) and Protocols of 1988, 1991 and 1994. 101 The Vienna Convention for the Protection of the Ozone Layer, 22 March 1985, 26 ILM 1529 (1987), (in

force 22 September 1988) and Montreal Protocol 10 September 1987, 26 ILM 1541 (1987), (in force 1 January 1989).

102 UN Doc. A/AC. 237/18 (Part II); 31 ILM 849 (1992). 103 UN Doc. UNEP Bio. Div/N7-INC. 5/4; 31 ILM 822 (1992). 104 UN. Doc. A/AC. 241/15/Rev. 3 ; 33 ILM 1332 (1994). 105 993 UNTS 243; 12 ILM 1085 (1973); Paul Mathews, “Problems Related to the Convention on the

International Trade in Endangered Species”, 45 ICLQ (1996), pp 421-431. 106 UN Doc. UNEP/WG. 190/4; 28 ILM 657 (1989); See gen. T. R. Subramanya, “The Basel Convention on

the Control of Transboundary Movements and Hazardous Wastes and Their Disposal of 1989 and Related Developments - An Overview”, 46 IJIL (2006), pp 406-428.

107 31 ILM 1330 (1992) and 32 ILM 1228 (1993). 108 11 ILM 963 (1973).

52

2. 4. 2. 1. United Nation Convention on Human Environment

Since the creation of the UN, great efforts have progressed to adopt appropriate and

adequate measurer in environmental protection and still continuing the work. Prior to the

Stockholm Declaration on Human Environment several international environmental

agreements have been adopted, in particular, some on marine pollution.109 However,

environmental management triggered a flurry of activity at international levels. The

Modern system on environmental management dates to the 1972 UNCHE held in

Stockholm 5-16 June 1972.110 UNCHE attracted 103 affirmative votes, 12 abstentions and

not a single negative vote. The 7 universal truths and 26 principles were adopted in the

UNCHE. The UNCHE was a magnificent achievement which brought the attention on

environmental issues which is a classic concern to conserve the resources for present and

future generation with global approach.111 During the debate of UNCHE it was described

“the declaration is an important milestone in the history of the human race” and that it was

“starting point in the task of making the planet a fit place for future generations”.112

109 International Convention for the Prevention of Pollution of the Sea by Oil, London, 12 May 1954, in force

26 July 1958; 327 U.N.T.S. 3 Convention on Fishing and Conservation of the Living Resources of the High Seas, Geneva, 29 April 1958, 559 U.N.T.S. 285; 52 AJIL (1958), 851, (in force 20 March 1966); 9 ILM 25 (1970); 11 ILM 251 (1972); 19 ILM 841 (1990); 11 ILM 262 (1972) and 11 ILM 1294 (1972).

110 UNGA Res.2994, 2995 and 2996; and Supra note 34. 111 Jaye Ellis and Stephen Wood, “International Environmental Law” in Benjamin Richardson and Stephen

Wood (Eds.,) Environmental Law Sustainability : A Reader, (Hart Publishing, Oxford, London, 2006), pp 343-380 at 344.

112 Louis B. Sohn, “The Stockholm Declaration on the Human Environment”, 14 Harv. Int’l L. J. (1973), pp 423-515; T. Sullivan, “The Stockholm Conference: A Step Toward Global Environmental Cooperation and Involvement” 6 Indiana L. Rev. (1972), pp 267-282; See also: David Hunter, James Salzman and Durwoood Zaelke, International Environmental Law and Policy, (Second Edition, Foundation Press, New York, 2002), p 175.

53

The Stockholm Declaration also describes that the present generation has a duty to

know an environmental quality but also have a “solemn responsibility to protect and

improve the environment for present and future generations.”113 UDHR accomplished for

the protection of fundamental freedoms and human rights,114 that is essentially a manifesto,

expressed in the form of ethical code, intended to govern and influence future action and

programmes both at the national and international levels.115 UNCHR has also asserted a

link between preservation of the environment and promotion of human rights.116 A

fundamental question is whether human rights and environmental protection are premised

upon fundamentally different social values, such that efforts to implement both

simultaneously would produce conflict with each other.117 Considering the overlapping

with each other;118 the UNCHE is described as Magna Carta on environmental protection.

113 Supra note 37. 114 Arvind Jasrotia, “Environmental Protection and Sustainable Development, Exploring the Dynamics,

Ethics and Law”, 49 JILI (2007), pp 30-59 at 42; Cancado Trindade, “The Contribution of International Human Rights Law to Environmental Protection, with Special Reference to Global Environmental Change”, in Edith Brown Weiss (Edn.,) Environmental Change and International Law: New Challenges and Dimensions, (United Nations University Press, Tokyo, 1992), Ch 9; See generally Alexandre Kiss, “International Human Rights Law and Environmental Problem” in Edith Brown Weiss (Edn.,) Environmental Change and International Law: New Challenges and Dimensions, (United Nations University Press, Tokyo, 1992), Ch. 8; and Alan Boyle, “The Role of Human Rights Law in the Protection of the Environment” in Alan Boyle and Michael Anderson (Eds.,) Human Rights Approaches to Environmental Protection, (Calendron, London, 1996), pp 43-70.

115 I. A. Shearer, Starke’s International Law, (Eleventh Edition International Student Edition, Oxford, 1994), p. 359; See gen. R. S. Pathak, “Human Rights System as a Conceptual Framework for Environmental Law”, in Edith Brown Weiss (Edn.,) Environmental Change and International Law: New Challenges and Dimensions, (United Nations University Press, Tokyo, 1992), Ch.5.

116 Dinah Shelton, “Human Rights, Environmental Rights and Right to the Environment” 28 Stand. J. Int’l L. (1991), pp 103-138 at 104; Robin Churchill, “Environmental Rights in Existing Human Rights Treaties” in Alan Boyle and Michael Anderson (Eds.,) Human Rights Approaches to Environmental Protection, (First Edition, Calendron, London, 1998), pp 89-108 at 100.

117 Supra note 24, p 39; Alan Boyle, “Human Rights and the Environment: A Reassessment”, Fordham Environmental Law Review, (2008), pp 471-511; Dinah Shelton, “Human Rights and the Environment: What Specific Environmental Rights Have Been Recognized?” 35 De J of Int’l L & Pol’y (2007), pp 129-172; Marc Pallamaerts, “A Human Rights Perspective on Current Environmental Issues and their Management: Evolving International Legal and Political Discourse on the Human Environment, to Individual and the State” 1 Hum Rts & Int’l Legal Discourse (2008), pp 149-172; Robin R. Churchill, “Environmental Rights in Existing Human Rights Treaties” in Alan Boyle and Michael Anderson (Eds.,) Human Rights Approaches to Environmental Protection, (Calendron, London, 1998), pp 153-176 at 175;

54

Principle 1 of the UNCHE emphasized the fundamental right to adequate

conditions of life for present and future generations.119 Principle 2 of the declaration

emphasized that the natural resources must be safeguarded for the benefit of present and

future generations.120 Principle 8 emphasized that, economic and social development is

essential for ensuring a favorable living and working environment for man that are

necessary for the improvement of the quality of life.121 Principle11 stresses that states

commitment to make appropriate environmental measures.122 Principle 21123 is a classical

example for customary principle of international law with regard to state responsibility in

conservation of resource.124 Jaydeepsinh has described that Principle 21 has been attaining

the status of juscogens125 that is to say the body of peremptory principles or norms from

which no derogation is permitted.126 Principle 22 of UNCHE urged the states to develop

the international law regarding liability and compensation for the victims of pollution and

and Stephen J. Turner, A Substantive Environmental Right, (Wolters Kluwer, The Netherlands, 2009), p.63.

118 Supra note 53, at p 591; Philippe Cullet, “Definition of an Environmental Rights in a Human Rights Context”, 13 Netherlands Human Rights (1995), pp 25-40.

119 Supra note 34. 120 ibid 121 Ibid 122 ibid 123 Principle 21 declares that States have, in accordance with the Charter of the United Nations and the

principle of international law the sovereign right to exploit their own resources to their own environmental policies, and the responsibility to ensure that the activities within their jurisdiction, or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction. Supra note 34.

124 Supra note 5; R. P. Anand, “Development and Environment: The Case of Developing Country”, 20 IJIL (1980), pp 1-19 at 13; Supra note 82 at 259; Foo Kim Boon, “The Rio Declaration and its influence on International Environmental Law”, 1992 SJLS, (1992) pp 347-364 at 354; see also Edith Brown Weiss, “Opening the Door to the Environmental and Future Generations” in Laurence Biisson De and Philippe Sands (Eds.,), International Law, The International Court of Justice and Nuclear Weapons, Cambridge, (1999), pp 338-353; Supra note 24, p 49.

125 Jaydeepsinh, G. Vaghela, “Judiciary of India and Implementation of international Environmental Law: Some Remarks”, Bimal N. Patel (Eds.,) India and International Law, (Koninklijke Brill, The Netherlands, 2008), pp 453-467.

126 I. A. Shearer, Starke’s International Law, Eleventh Edition, International Student Edition, Oxford, (1994), p. 48.

55

other environmental damage caused by the activities within the jurisdiction or control of

such states to areas beyond their jurisdiction”.127

The UNCHE, basically have two conflicting approaches. The first approach is the

primary concern of control of pollution and conservation of natural resources. The second

approach is social and economic development. The two seemingly opposite approaches

were as two sides of the coin that are inseparable from each after. The declaration does not

tell us how these aims, which may be mutually incompatible, are to be achieved.

The UNCHE led to the establishment of the UNEP headquartered in Nairobi, Kenya.

UNEP is to act as a catalyst for the environment in the UN system.128 Over the years,

UNEP contribute significantly, by adopting a significant number of MEAs as well as many

regional agreements.129 UNEP push states, probe their policies, as the environmental

science of the UN system.130 Boyle describes that soft law consists of general norms or

principles not rules.131 UNEP is the principal source of environmental data, assessment and

reporting and advance stage of cooperation. All UNEP financed by direct, voluntary

contribution from member states. However, UNEP cannot coerce the state to commit to

comply soft law instruments. 127 Supra note 34. 128 Carol Annette Petsonk. A., “The Role of UNEP in the Development of International Environmental Law”,

5 AUJILP (1990), pp 2351-391 at 351; see also Mark Allen Gray, “The United Nations Environment Programme: An Assessment”, 20 Environmental Law (1990), pp 291-319.

12911 ILM 1358 (1972); 993 U.N.T.S. 243; 12 ILM 1085 (1973); Convention on the Protection of the Marine Environment of the Baltic Sea Area, Helsinki, 22 March 1974, (in force 3 May 1980); 13 ILM 546 (1974); 11 ILM 1294 (1972);13 ILM 352 (1974); ENMOD Convention, UNGA 10 December 1976, U.N.T.S. 1108, 151; and 18 ILM 1442 (1979).

130 UNGA A/Res/2995, XXVII, 15 December 1972, GAOR 27th Session, Supplement No. 30 (A/8730). 131 Alan Boyle, “Some Reflections on the Relationship of Treaties and Soft Law” 48 ICLQ (1999), pp 901-

913 at 901; see gen. Christine Chinkin, “The Challenge of Soft Law: Development and Change in International Law”, 38 ICLQ 1989), pp 850-866; Pierre Marie Dupuy, “Soft Law and the International Law of the Environment” 12 Mich. J. Int’l L. (1990-1991), pp 420-435.

56

2. 4. 2. 2. Modern International Law on Environmental Protection

States have undertaken a range of international obligations in respect of protection of

the environment under customary International law as well as general principles of

international law.132 To put some flesh on the bones of Principle 21 UNCHE, the ILC

began its initiatives in 1978.133 International law and institutions should be used efficient

tools for the peaceful resolution of those international economic conflicts which already

exist or can be foreseen in the field of natural resources.134 Resource management has

unquestionably been dominated by a concern with technical sophistication as a source of

creditability of political, cultural, economic and social relevance.135

The principle of state responsibility is reemphaised in the codifications of

international environmental law136 that helps ‘to achieve international standard of

justice.’137 Alan Boyle has characterized that the effort by writing that “it is liable to seem

132 Robust W. Hahn, “Toward a New Environmental Paradigm “, 102 Yale Law Journal (1997), pp 1719-

1961 at 1756; See also: Simon Dalby, “Environmental Insecurities: Geopolitics, Resource and Conflict”, XXXVIII Econ. Pol. & Wkly (2003), pp 5073-5079.

133 The ILC established the Working Group on International Liability for Injurious Consequences arising out of acts not prohibited by International Law at its 152nd meeting on June 16, 1978 and Robert Q. Quentin - Baxter was appointed special Rapporteur (1987).

134 Andrey Parry and J.E.S. Fawcett, Law and International Resource Conflicts, (Calendron Presss, Oxford, 1981), p. viii.

135 Dr. A. David Ambrose, “Sustainable Development of Natural Resources and Environmental Duties in International Law”, 4 SBRRM Journal of Law (1997), pp12-38 at 13; Richard Howitt, Rethinking Resource Management, Justice, Sustainability and Indigenous People, (First Edition, Routledge and Taylor and Francis Group, London and New York, 2001), p. 9; see also Lamont C. Hempel, Environmental Governance, The Global Challenge, Affiliated East-West Press Pvt. Ltd., New Delhi, 1998) p. 56.

136 Malcolm N. Shaw, International Law, (Fifth Edition, Cambridge University Press, Cambridge, 2003) p. 694; Pierre-Marie Dupuy, “The International Law of State Responsibility: Revolution or Evolution” 11 Michigan Journal of International Law (1989), pp 105-28; Ginther Handl, “Territorial Sovereignty and the Problem of Transnational Pollution”, 69 AJIL (1975), pp 50-76 54; Philip Allott, “State Responsibility and the Unmaking International Law” 29 Harv. Int’l Law Journal (1988), pp 1-26.

137 Y. Matsui, “The Transformation of the Law of State Responsibility” in Rene Provost (Edn.,) State Responsibility in International Law, (Ashgate Dartmouth, London, 2002), pp1-65 at 5; John M. Kelson,

57

at best a questionable exercise in reconceptualising an existing body of law, or at worst, a

dangerously retrograde step which may seriously weaken international efforts to secure

agreement on effective principles of international environmental law.”138 Under the state

responsibility states are liable for injurious consequences arising out of acts not prohibited

by international law.” Many of them are now viewed with a sense of urgency that could

not have reasonably been expected on the basis of the scientific evidence then available.139

The principle of state responsibility concerning transboundary interferences are:

1. A State is responsible under international law for a breach of an

international obligation relating to the use of a natural resource or the prevention or

abatement of an environmental interference.

2. In particular, it shall:

(a) cease the internationally wrongful act;

(b) as far as possible, re-establish the situation which would have existed if

the internationally wrongful act had not taken place;

(c) provide compensation for the harm which results from the internationally

wrongful act;

(d) where appropriate, give satisfaction for the internationally wrongful act.140

This present part also covers the initiatives of the International Law Commission

under the state responsibility to achieve environmental sustainability both for the present

and future generations.

“State Responsibility and Abnormally Dangerous Activities,” 13 Harv. Int’l LJ. (1972), pp 197-244 at 243.

138 Alan Boyle. “State Responsibility and International Liability for injurious Consequences of Acts not prohibited by International Law: A necessary Distinction”, 39 ICLQ (1990), pp 1-26 at 22.

139 Panjabi, “From Stockholm to Rio: A Comparison of Declaratory Principles of International Environmental Law”, 21 DENVER JILP (1992-1993), pp 215-288 at 245.

140 Supra note 34.

58

2. 4. 2. 2. 1. World Conservation Strategy, 1980

In March 1980, for the first time, Director General, David Munro launched the

WCS which was prepared by IUCN, WWF and the UNEP. WCS was the major attempt to

integrate environment and development concerns into umbrella concept of living resource

“conservation”.141 The chief objective of resource conservation as follows;

- maintenance of essential ecological processes and life support systems;

- preservation of genetic diversity; and

- sustained utilization of species and ecosystem.

But the WCS did not go deep into the social and political changes needed for the

developing countries to realize these objectives.142

2. 4. 2. 2. 2. Charter for Nature, 1982

The idea of the Charter was mooted in 1975 at the Twelfth General Assembly of

the IUCN. The proposal was accepted and an international group of experts as a code of

conduct for managing natural resources based on the proposition that all human conduct

affecting nature must be guided and judged.143 The Charter for Nature was nearly

unambiguously endorsed by the United Nations General Assembly in 1982.144 The

Charter also comes to grips with the problem of global environmental change by imposing

a requirement on states and ultimately their national territories which are likely to pose

141 Supra note 5. 142 N. R. Inamdar, “Sustainable Development: The Concept and Policy Perspectives”, 39 IJPA (1993), pp

372-386 at 375. 143 UNGA, Draft World Charter for Nature Report of the Secretary General, 36th Sess. At 14-15, Agenda item

23, Doc. A/36/539, (1981), Annex I, Appendix II. 144 Supra note 34.

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significant risk to nature shall be preceded by an exhaustive examination. The Charter for

Nature, a genuine 'moral code of action', acknowledges the interrelatedness of every form

of life, economic, social and political stability and environmental preservation, and

extensively addresses, albeit without expressly referring to it, the idea of sustainable

consumption.

“Lasting benefits from nature depends on the maintenance of essential ecological processes and life support systems, and on the diversity of life forms, which are jeopardised through excessive exploitation and habitat destruction by man.”145

2. 4. 2. 2. 3. Nairobi Declaration, 1982

To celebrate the tenth anniversary of the Stockholm Declaration on Human

Environment, 105 nations gathered at a meeting held at Nairobi to look at progress from

May 10-18, 1982.146 At the meeting, the decision was taken for the creation of a special

commission to propose long-term environmental strategies for achieving Sustainable

Development by the year 2000 and beyond which was endorsed by the UNEP’s Governing

Council. 147 The enthusiasms of the developed countries seemed to be on the wane at

Nairobi.148

145 Preambular para 4 (a), Supra note 5. 146 Nairobi Déclaration, 37 UN GAOR Supp. (No.25) at 49, UN Doc A/37/25 (1982). The Nairobi

Declaration, 18 May 1982, U.N.E.P. Report of the Governing Council 37 U.N. GAOR Annex, 2 Supp. (No. 25) at 49, U.N. Doc. A/37/25 (1982).

147 Report of the Governing Council of UNEP on its 10th Session, (1982), pp 49-51. 148 Ved Nanda, “Ten years After Stockholm - International Environmental Law”, 77 ASIL Proc. (1983), pp

411-43.

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2. 4. 2. 2. 4. World Commission on Environment and Development, 1987

In 1982, the Experts Group on Environmental Law established by the World

Commission on Environment and Development (herein after referred to WCED) had an

easier task than the ILC.149 WCED was held under the chairmanship of Prime Minister of

Norway and submitted a report called “Our Common Future.” The committee formulated

a report on legal principles for environmental protection and sustainable development and

for accelerating the development of International Law. The group produced elements of a

draft convention in 1986, setting out clear principles of liability concerning transboundary

interferences. The Report not only elaborated the relation and nexus but also defined the

concept of Sustainable Development and stresses the factor of environmental degradation

causing the violent relationship between the resource management and development and

stresses:

“Sustainable Development as a framework for the integration of environment policies and development strategies in order to assure that growing economies remain firmly attached to their ecological roots and that these roots are protected and nurtured so that may support growth over the long term.”150

The whole discussion of the thesis is based on the definition of Our Common

Future and the various principles that are unanimously adopted in various environmental

agreements by the UN member countries at various levels.

149 Supra note 6. 150 Supra note 7, at 29.

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2. 4. 2. 2. 5. Caring for the Earth, 1991

A Strategy for Sustainable Future was developed by the second world conservation

project comprised of the representatives of the IUCN, UNEP and WWF.151 The central

theme of the report is the application of the principle of Sustainable Development.

Caring for the earth represents current, middle-of-the road thinking on the relationship

between conservation and development. The document also concerns both human rights

and the biodiversity and environmental degradation.152 Specific recommendations of the

report include:153

- establishing a constitution commitment to the principles of Sustainable

Development;

- establishing a comprehensive system for environmental law, and providing for

its implantation and enforcement;

- reviewing the adequacy of legal and administrative control and of

implementation and enforcement mechanisms;

- making information on the environment more accessible; and

- subjecting projects, programmes and policies to environmental impact

assessment.

151 Caring for the Earth: A Strategy of Sustainability, 1991, prepared by UNEP, IUCN and WWF, (Gland,

Switzerland, 1991). 152 John G. Robinson, “The Limits to Caring: Sustainable Living and the Loss of Biodiversity”, 7

Conservation of Biology, (1993), pp 20-28. 153 Supra note 151.

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2. 4. 2. 2. 6. United Nations Convention on Environment and Development, 1992

Amongst the United Nations measures; the Rio Declaration invigorate the tussle

and integrate trade, development and environmental goals. In early 1990s, two parallel

Conference on Environment and Development154 held in Rio de Janeiro, Brazil from June

3-14, 1992 wherein more than 170 governments participated. Rio Declaration significantly

consolidate the interests of developing and developed states gave a new global

commitment and general obligation of states in the field of environment and conservation

of resources. During the Preparatory Committee (Prep Comm) UNCED’s mission was to

put to world on a path of Sustainable Development which aims at meeting the needs of

present and future generation.155 UNCED Secretary General, Maurice Strong and UN

Secretary General Boutrous Ghali each called on states to negotiate a move legally

progressive “Earth Charter”. During the negotiations, one delegate from the developed

countries stated thus: “The Earth Charter should be framed and put in the room of every

child of the world”.

Earth Charter produced five documents.156 The 27 principles UNCED is something

of a ‘package deal’ negotiated by consensus that reflects a real consensus to identify agreed

norms of North South compromising guidelines for sustainability. The Rio Declaration has

thus been called: “A text of uneasy compromises, delicately balanced interests, and dimly

154 David Freestone, “The Road From Rio : International Environmental Law after the Earth Summit” 6 JEL

(1994), pp 193-218 at 193. 155 For Reports of the Preparatory Committee, see UN Doc, A/Conf.151/PC/L.31, Annex (1991);

A/CONF.151/PC/78 (1991); Malanczuk. P, “Sustainable Development: Some Critical Thoughts in the Light of the Rio Conference” in Ginther, Denters and de Waart (Eds.), Sustainable Development and Good Governance, ( Mrtinus Nijhoff, Dordrecht, 1995), pp 23-43.

156 Supra note 34.

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discernible contradictions, held together by the interpretative vagueness of classic UN-

ese.157 However, none of the principles either define the Sustainable Development or

articulate the mandate in principle 1 of Stockholm Declaration i.e., the Human Right to a

decent environment a fundamental right.

The preamble of the declaration integrates the global environmental and

developmental system an interdependent part of own development. Principle 1 of the

declaration describes that, human beings are at the centre of concerns for Sustainable

Development. They are entitled to a healthy and productive life in harmony with nature.158

Environment being the vital source for developmental activities this principle recognizes

the definition of Sustainable Development, and also given more concentration on the

protection of environment.159 Principle 3 of the declaration reemphasise that the right to

development must be fulfilled so as to equitably meet developmental and environmental

needs of present and future generations.160 Principle 4 also in the someway, it state that to

achieve Sustainable Development, environmental protection shall constitute an integral

part of the development process and cannot be considered in isolation from it.161

157 Supra note 24, pp 50-51; Sands, P.J. “The New Architecture of International Environmental Law”, 30

RBDI (1997), pp 512-530; Foo Kim Boon “The Rio Declaration and its Influence on International Environmental Law”, 1992 SJLS (1992), pp 347-364 at 351.

158 Supra note 37. 159 Principle 12 Declares State should cooperate to promote a supportive and open international economic

system that would lead to economic growth and Sustainable Development in all countries, to better address the problems of environmental degradation. Trade policy measures for environmental purposes should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade. Unilateral actions o deal with environmental challenges outside the jurisdiction of the importing country should be avoided. Environmental measures addressing transboundary or global problems, should, as far as possible be used on an international consensus. Supra note 34.

160 Supra note 37. 161 Ibid.

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Considering the applicability of these principles, experts describe UNCED concentrates

strictly on environmental issues.162

On liability for environmental damage it merely reiterates the need to develop the

law.163 Principle 16 of the UNCED describes that commitment of states on economic

issues.164 Principle 25 of the declaration165 emphasizes that peace, development and

environmental protection are interdependent and indivisible. This principle clearly states

that the concept of Sustainable Development has attained the international status. Lastly, it

calls for the further development not of international law relating to the environment but of

international law in the field of Sustainable Development.166 Despite these qualifications, it

is right to view the Rio Declaration in generally positive terms. It is much too pessimistic

to characterize it as a backward step in the development of international environmental

law.167 On the contrary the declaration has articulated the shared expectations of developed

and developing states and brought together an important body of new and existing law. It

does not deal with environmental crimes.168

The MEAs and MTAs adopted prior to and at UNCED reflect the growing range of

economic activities which are a legitimate concern of international community and subject

162Supra note 57, p. 33. 163 Principle 13, Supra note 37. 164 Marc Pallemarts, “International Environmental Law From Stockholm to Rio: Back to the Future” in

Sands (Edn.), Greening International Law”, 29 GEO. LR (1995), pp 254-279 at 261. 165 Supra note 37. 166 ibid. 167 Richards and Hahn, “The Internationalization of Environmental Regulation”, 30 Harv. ILJ. (1989) pp at

421. 168 See. Gen. Bowett, in McDonald and Johnston, The Structure and process of International Law

Dordrecht, (1983), pp 46-51; Dr. A. David Ambrose, “Green Crimes Need Red Signal”, 23 The Year Book of Legal Studies (2000), pp 21-34 at 22; Supra note 24, p. 329.

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to international regulation.169 UNCED agreed priorities could be divided into two

categories.

a) Those relating to protection of various environmental media, and

b) Those relating to regulation of particular activities or products.

For both categories the international legal issues are complex and cannot be

addressed without taking into account political, cultural, economic and scientific

concerns.170

UNCED and Agenda 21 was reviewed to build upon a strategy to harmonise the

various economic, social and environmental policies and plans for the benefit of future

generations.171 The Strategy was build upon and harmonize Collection of improved

information, analysis and dissemination of data and calls for international cooperation172 is

needed to interpret the treaty obligation through the Earth Watch programme of the UNEP.

It should be developed through widest possible participation.173 The Rio Conference

helped establish the United Nations Commission on Sustainable Development (herein after

referred to UNCSD) and reaffirmed the role of the Global Environment Facility (GEF),

thus widening the organizational basis for the Environment and Sustainable Development

within the United Nations System.174

169 Sand P. “UNCED and the Development of International Environmental Law” 3 YbIEL (1992), pp3-17 at

6. 170 Dinah Shelton, “Human Rights, Environmental Rights and Right to the Environment” 28 Stand. J. Int’l

L. (1991) pp 103-138 at 104; See also J. B. Ruhl, “Sustainable Development: A Five Dimensional Algorithm for Environmental Law” 18 Stand. J. Int’l L. (1999) pp 31-64.

171 Supra note 37. 172 ibid. 173 ibid 174 UNGA Res. 47/191 (1992). See Osborn and Bigg, Earth Summit II: Outcomes and Analysis, (London,

1998), p. 60.

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2. 4. 2. 2. 7. World Summit on Sustainable Development, 2002

In 2002, the WSSD was adopted by the United Nations General Assembly to

strengthen the global commitment of the UNCED. The Conference held at Johannesburg

from 26 August to 4 September 2002.175 This summit also stresses the mandate for

national policies to implement Agenda 21 of UNCED and remove obstacle for achieving

Sustainable Development.176 The conference adopts two documents,177 such as the

Johannesburg Declaration and the plan of Implementation. However, WSSD does not

provide a succinct definition of the concept of Sustainable Development.

The declaration makes the link with the three pillars of Sustainable Development.178

Poverty is primary factor of ecological degradation179 WSSD prescribes method and

means to eradicate poverty, consumption and production patterns and manage the natural

resource which is the greatest global challenge.180 The World Development Report 2006

175 See UNGA Res. 55/1999; Report of the World Commission on Sustainable Development, Sep. 2002, U.

N. Doc. A/CONF. 199/20.; See also Johannesburg Declaration, in Report of the World Summit on Sustainable Development, 26 August to September 2002, UN Doc. A/AC. 257/32 at 5.

176 Lee Kimball, Franz Xaver Perrez and Jacob Werksman, “The Results of the World Summit on Sustainable Development: Targets, Institutions and Trade Implementation”, 13 YbIEL (2002), pp 3-19 at 13.

177 Report of the World Summit on Sustainable Development, 26 August to September 2002 http://www.Johannesburgsummit.org/html/documents/summit_docs/2309_planfinal.pdf last visited on

178 Supra note 172; See also Dominic McGoldrick, “Sustainable Development and Human Rights: An Integrated Conception”, 45 ICLQ (1996), pp 796-818 at 801; See gen Jane Holder and Maria Lee, Environmental Protection, Law and Policy - Text and Materials, (Second Edition, Cambridge University Press, Cambridge, 2007), p.237.

179 Edith Brown Weis, “Global Environmental Change, and International Law: The Introductory Framework”, in Edith Brown Weiss (Edn.,) Ch 1.

180 G. Mayeda, “Where Should Johannesburg Take Us? Ethical and Legal Approaches to Sustainable Development in the Context of International Environmental Law”, 15 Colo. J. Int’l Envt’l L & Pol’y (2004), pp 29-69; Kevin R. Gray, World Summit on Sustainable Development: Accomplishments and New Directions, 52 ICLQ (2003), pp 256-268 at 262; H. C. Bugge and L. Walters, “ A Perspective on Sustainable Development After Johannesburg on the Fifteenth Anniversary of Our Common Future: An Introduction with Gro Harfern Brundtland” 15 Geo. Int’l Envt’l L. Rev. (2003), pp 359-66.

67

also describes greater equity does not guarantee less poverty.181 However, from a

multilateral perspective, it is quite difficult to require countries within jurisdiction, which

necessitates international cooperation. Peace, security, stability and respect for human

rights and fundamental freedoms are deemed to be essential for achieving Sustainable

Development.182

It must be mentioned that the UN and its specialized Agencies have elaborated and

concluded under their auspices more than 150 conventions and treaties on the environment

and resource management. This magnificent development of the treaty law on environment

manifests a great achievement of the UN system on the International Environment Law.

This great progress has specifically been achieved by great efforts and contribution and

collaboration of UNEP, UNCED and other UN Organisation which coordinated their

efforts with the UN in developing international environmental law. It is necessary to

mention the role of the UNEP, as it carried the great burden of the work which has been

accomplished by the UN and thus contributed to the development of environmental

science, law, study, international cooperation, planning and drawing international

environmental strategy.

The newly emerging security concerns have been characterized as non-traditional,

and are now considered a major component of what is christened as comprehensive

security. Among these emerging problems replacing the threat of East-West ideological

181 “Why Growth Requires Greater Equity”, The Economic Times, 23 December (2005), Chennai Edition. 182 Principle 25, Supra note 37; Charlotte Streck, “The World Summit on Sustainable Development:

Partnerships as New Tools in Environmental Governance” 13 YbIEL (2002), pp 63-95; World Conference on Human Rights, June 14-25, 1993, Vienna Declaration and Programme for Action, UN Doc. A/CONF.157/23, (July, 1993).

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divide, military aggression and struggle for global preponderance is the global

environmental crisis. It looms large in terms of global warming, sea level rise, acid rain,

greenhouse effect, diminishing capacity of the agricultural system, depletion of earth’s

finite resources, punching holes in the ozone layer, and biodiversity loss.

MEAs incorporates both the positive and negative elements.183 The positive

elements are:

1. Stimulation of awareness of issues affecting all or most nations;

2. Opportunity for arising grievances and revealing hidden tension, and

3. Obtaining agreement among nation-states sufficient to afford a basis for

cooperative action, including research and institutional arrangements.

Negative elements are;

1. Opportunities for inflammatory rhetoric and distortion of issues for purpose of

propaganda;

2. Tendency to compromise issues to a point of inaction; and

3. Uncertainty regarding the ability of government to honor conferences

commitments.

183 Lynton Keith Caldwell, “International Environmental Policy: Emergence and Dimensions” in Robert V.

Pervical and Dorothy C. Alevizatos (Eds.,) Law and the Environment, A Multidisciplinary Reader, (Temple University Press, Philadelphia, 1997), pp 367-372 at. 367.

69

2. 4. 2. 2. 8. United Nations Convention on Sustainable Development, 2012

In 2012, realising the need of harmonization of trade and developmental polices for

the effective conservation of resources in the Mother Earth the Future we want was

adopted.184 The United Nations Convention of Sustainable Development was held from 20

to 22 June 2012 at Rio De Jenerio. There are more than 200 states were actively

participated. In fact at Rio, there are strategic plans are adopted. However, for the purpose

of this research the Future we want only analysed in detail.

Future we want recalled the UNGA Resolutions and emaphsise that mandate of the

state to incorporate environmental principles and in their trade and developmental polices

to achieve the Millennium Developmental Goals.185 The Convention also emphasizes need

for integrating the three dimensions of sustainable development186 including the inclusive

and people centered growth by involving and benefitting all people.187 The Convention

also remarkably emphasise the mandate of Preamble of the WTO and covered agreements

of the WTO.188 This has seriously raised a doubt that whether the concept of Sustainable

Development is mandatory or obligatory. Realising status of the concept; the various legal

elements of the concept of Sustainable Development is analysed in detail.

184 UN GA Res. 66/288, 11 September, 2012, available at sustainabledevelopment.un.org/rio20.html, last

visited on 20.11.2012. 185 UN GA Res. 64/236, 9 December 2009; 66/197, 22 December, 2011, Para 37, UN GA Res. 66/288, 11

September, 2012. 186 Paras. 20, 75-76, Supra note 181. 187 Para. 31, Supra note 181. 188 Paras 78, 142, 178, 282, ibid.

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2. 5. Soft Law

To save the generations form environmental deterioration in the Mother Earth;

there are sizeable literatures including judicial contribution has been burgeoning. It is

understood, the very prominence of the concept of Sustainable Development is recognized

in various multilateral environmental and trade agreements. Some of the agreements,

declaration, convention and treaties are mixing with binding and non-binding governing

principles.189 In fact, the term soft law has no clear-cut definition in international law.

However, it raises a serious doubt about the binding aspects of the documents and concern

with whether the governing principle of Sustainable Development is obligatory or

discretionary? The enforceability and binding can be drawn from custom or treaties.

There is serious doubt about the bindingness of the concept of Sustainable

Development to the effect of conservation of resources. The traditional international law

remarks that responsibility of state to take appropriate measure both in precaution as well

as to provide remedy to that pollution. These factors are also often proved with state

practice before it hardens to legally enforceable. It is interesting to note that to decide

applicability and legal status of custom in international arena, the norms represent will

become binding upon all countries, whether or not they are party to the relevant

agreement?

189 Helsinki Declaration on the Protection of the Ozone Layer, May 2, 1989, reprinted in 28 ILM 1335

(1989) and Montreal Protocol, reprinted in 30 ILM 537 (1991).

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Considering the mandate of the state in effective conservation of resources it is

need of the hour to discard the political options of the states in protecting the common

property. Adaptation of the Resolutions, Conventions and Declarations is a remarkable

step to combine the political decision with legal enforceability. These UN initiatives on

Sustainable Development also considered as a prime catalyst in compelling the states to

adopt appropriate national polices to conserve the resources for the present and future

generations. There are also weaknesses in adopting the UN-ease measures. The process

for adoption of make take long time. When there is a specific commitment on states the

states may shy away from the specificity they often involve. This can also alter the

circumstances in which an issue is considered. Soft law provisions that create no

immediately legally binding obligations have emerged as tools to formulate societal values

and express consensus.190 It may, however, be used to categories those ambiguous

obligations found in binding international agreement. It may also be used for those non-

binding standards of conduct found in declaration, resolutions and other non-binding

instruments. Resort to soft law leaves large amounts of discretion to states.

Above all, recognizing the equity, the Earth Charter is the key document

remarkably incorporating the legal elements both are soft and hard law. The concept of

Sustainable Development can be analsyed and interpreted on the basis of equity rather

than on legal obligation.

190 Alexandre Kiss, “Human Rights System as a Conceptual Framework for Environmental Law”, in Edith

Brown Weiss (Edn.,) Environmental Change and International Law: New Challenges and Dimensions, (United Nations University Press, Tokyo, 1992), Ch 8.

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2. 6. Conclusion

From the analysis of the customary and modern international, such as, the MEAs it

is concluded that the Concept of Sustainable Development is a buzz word. Prominence of

the traditional international law describes that no activities of a sovereign state should not

make transboundary pollution, sic utero tuo non lades. The remarkable contributions of the

Judiciary also empahsises that the state practice and opinion juris also reiterates that

environmental protection is a part of customary international law. The concept of

Sustainable Development links the social, economic, environmental rights both for the

present and future generations. Environmental security dimension mandates that national

policy maker to make appropriate policy for the effective conservation of resources both

for the present and future generations. Although, the definition for the concept of

Sustainable Development is not precise and clear; the modern international law

transformed the practice among states in the form of multilateral environmental

agreements (MEAs). Rio Declaration, in its various legal elements, mandate national

governments to make appropriate measures the need for effective conservation of

resources both for the benefit of present and future generations at all level. Since, these

MEAs imposes only obligation still there are serious doubt regarding the bindingness of

the concept of Sustainable Development. This can be realized only with the effective

acceptance and recognition of the national legislation and polices.

*****