Article from:Journal of Business Administration and Policy Analysis Article date:January 1, 1999 Author:Pardy, Bruce Copyright
Should sustainable development be a domestic legal rule? What role could it play? What would it mean? Before considering these questions, I will briefly describe their legal context.


The emergence of the concept international environmental law

In 1983, the United Nations established the World Commission on Environment and Development. [1] In 1987, in its report Our Common Future, [2] the Commission recommended sustainable development as a strategy to combat the world’s accelerating environmental problems and the growing divide between rich and poor countries. Sustainable development was defined as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” [3] The report identified the objectives of sustainable development as reviving growth, changing the quality of growth, meeting essential needs for jobs, food, energy, water, and sanitation, conserving and enhancing the resource base, reorienting technology, managing risk, and merging environmental and economic decision making. [4] It was described as a multi-faceted concept consisting of ecological, social, and economic sustainability, and encompassing the ideals of environmental health, social justice, and qualitative improve ment in living standards.

Since then, sustainable development has become one of the dominant concepts in international environmental law. The 1992 Rio Declaration on Environment and Development [5] articulated 27 principles directed at achieving sustainable development. Several environmental conventions and other international instruments refer to sustainability and sustainable development as guiding principles. [6] The Preamble of Agenda 21, A Global Programme of Action on Sustainable Development7 drafted at the United Nations Conference on Environment and Development in 1992 states:

1.1. Humanity stands at a defining moment in history. We are confronted with a perpetuation of disparities between and within nations, a worsening of poverty, hunger, ill health and illiteracy, and the continuing deterioration of the ecosystems on which we depend for our well-being. However, integration of environment and development concerns and greater attention to them will lead to the fulfilment of basic needs, improved living standards for all, better protected and managed ecosystems and a safer, more prosperous future. No nation can achieve this on its own; but together we can – in a global partnership for sustainable development.

International versus domestic law

International law governs relationships between states. [8] It does not directly govern the actions of persons within those states. In contrast, domestic law is intra-national law. It is the law that exists within a country that proscribes certain behaviour from individuals, and governs relationships between persons, including corporate entities, and between persons and the government of that state.

International law is dependent upon voluntary submission and observance. International conventions and treaties are essentially agreements between or among countries that are entered into voluntarily, as a result of political negotiation. They are statements that define how signatory states are expected to behave. When a treaty is breached, the consequences are largely political and symbolic. Other countries may retaliate in an economic or political manner; or the offending state may be challenged in an international forum, such as the International Court of Justice. Such bodies do not have the coercive power to enforce their judgments. If the regime includes binding arbitration, as in the case of international trade law, there may be consequences for the terms of the offending country’s continued participation in the pact. But whatever the consequences, there is no supreme authority with the power to make laws and enforce them unless states voluntarily submit themselves to that authority.

Unlike the non-coercive nature of international law, domestic laws are rules with sanctions imposed by the state. Obedience to these rules is mandatory, not voluntary. Any breach can result in some form of liability, leading to criminal punishment like a fine or imprisonment, or a civil order to pay compensation. Both types of order may be enforced by the coercive power of government. Not all breaches lead to liability, since minor breaches may be ignored or overlooked by enforcement agencies, or not sued upon by people whose rights have been injured. But such circumstances do not change the basic definition that laws are rules that have sanctions enforced by the state. Governments create and enforce laws without seeking the consent of those who will be subject to them, except in the most general way by holding elections. An election can be seen as the delegation of coercive law-making authority from the populace to the elected legislative body.

Domestic environmental law

Identifying the central features of domestic environmental law is difficult for at least four reasons. First, it is not a formal legal category. Domestic law can be split up into distinct subject areas, such as contracts, commercial law, family law, and the law of restitution, but environmental law is not one of these. Instead, it is a somewhat haphazard collection of statutory provisions, regulations, common law rules and principles. Some statutes and regulations have been created specifically for the purpose of environmental protection, but there are also many other laws that have some role to play in the environmental arena. The term “environmental law” is merely a label used to refer to the group of laws that impact upon environmental matters in some way. Second, explanations for environmental problems differ in science, philosophy, economics and politics, and environmental law is the place where the explanations collide. A way to reconcile the different perspectives has not yet been developed. Third, env ironmental law exists in both the international and domestic spheres, described above. Because of the fundamental differences in the nature of international and domestic law, it is not a simple matter to take a concept from one area and apply it to the other. [9] This problem is related to the fourth difficulty, which is that there is a gap between “soft” environmental law, which consists of philosophical and jurisprudential writings and much of international environmental law, and “black letter” environmental law, which consists of provisions in statutes, regulations, treaties, and judgments from courts. As a discipline, environmental law has yet to confront, much less resolve, its central dilemmas, and its core principles are in a state of flux.

Sustainable development in federal and provincial statutes

Sustainable development is not yet a core principle of domestic environmental law; but in Canada it has been incorporated into some environmental statutes. For example, one of the purposes of the Canadian Environmental Assessment Act is “to encourage responsible authorities to take actions that promote sustainable development and thereby achieve or maintain a healthy environment and a healthy economy.” [10] The Canadian Environmental Protection Act, 1999 declares that “the protection of the environment is essential to the well-being of Canadians


October 16, 2010 - Posted by | Uncategorized

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