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Posted on Sustainabilitank.info on April 24th, 2012
by Pincas Jawetz (pj@sustainabilitank.info)



In www.sustainabilitank.info  we wrote about the Friday, April 20, 2012, International Development Law Organization (IDLO)/ Centre for International Sustainable Development Law (CISDL) joint event with the Division for Sustainable Development (DSD) of the Department of Economic and Social Affairs (DESA) on the topic:

“THE CONTRIBUTIONS OF LAW TO THE RIO+20 AGENDA”

we have here the opening presentation by Ms. Elizabeth (Liz) Thompson, Assistant Secretary-General of the UN, and Executive Coordinator of the UN Conference on Sustainable Development – the so called RIO+20 June 2012 event being prepared right now in meetings at the UN headquarters in New York.

Ms. Thompson was a practicing attorney as well as a journalist. She was a lecturer in ecology, economy, energy and politics. She has degrees from the University of the West Indies, an MBA from the University of Liverpool and a Master of Law From Robert Gordon University of Scotland. She held Ministerial positions in Energy and Environment.


PROTOCOL: Philosophers and scholars of jurisprudence posit that law is a prerequisite for the regulation of a society, for the definition and underpinning of bounds of acceptable behaviour, for establishing certainty in commercial relationships and for the organisation of social and economic activity – particularly in regulating relations amongst citizens, between companies, and even between countries.

It is interesting to observe that when cynics say that nothing comes out of mega-conferences, the contribution of conference such as the Earth Summit of 1992 to a consequential body of legal principles is largely ignored. They also take for granted the multiple benefits and rights which are bestowed on societies as a result of the dialogue, negotiations and consequential global and national activities, including new legal frameworks.

  • The United Nations Conference on Environment and Development (UNCED), of 1992, was the catalyst and anchor for the creation of a body of law which bestowed broad political legitimacy on the concept of sustainable development, as elaborated in a detailed blueprint, Agenda 21.
  • Rio 92 became the platform from which was launched tracks of hard law in the form of international conventions such as – UNFCCC, UNCBD, UNFCD, and was the culmination of a fertile period of law-making and for providing the backdrop for the adoption of the Statement of Forest Principles. It also became the ultimate font of the creation and enactment into national legislation globally, of some of the Principles agreed at Rio. Finally, the Conference became the source for streams of soft law which enlarge our understanding of and the efficacy of national and international legal systems (although there is debate over the role of soft law in international law).

  • The Rio Summit Declaration gave expression to foundational principles of international environmental law, some of which have also been replicated in national laws. Some of the foundational principles to which I refer include:

§       The “no-harm” principle (Principle 2) stating States have the sovereign right to exploit their natural resources provided that in doing so they do “not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”

§       the “right to development” (Principle 3)

§       the precautionary approach (Principle 15), codified in various treaties and discussed in various international cases and journals

§       the principle of “common but differentiated responsibilities” (Principle 7)

§       the “polluter pays principle” (Principle 16)

Since Rio a great deal of progress has been made in setting goals and targets, and the forging of partnerships in the field of sustainable development. Despite this clear progress, the sheer scale and acceleration of global problems – climate change, biodiversity loss, fisheries and oceans, food insecurity – lead to the conclusion that our efforts since Rio 92 need to be strengthened and that in so far as law contributes to development, then the enhancement of legal mechanisms which could secure and accelerate the process and progress of sustainable development, must be undertaken.

Against this background, I seek to pose two questions – What could Rio+20 contribute to the law and development nexus? Should Rio+20 initiate a new round of normative innovation?

Sustainable development is predicated on integrated policy-making and implementation.  Let us recall that Rio Principle 4 provides that: “In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.”   Hence, in my view, in legal and policy terms, success in Rio+20 will rest primarily on taking integration of the three pillars of sustainable development seriously at the national, regional and international levels, as well as dedicating ourselves to the implementation of both existing commitments and those which might be birthed at Rio+20. It will also rest on whether we can develop new and effective international frameworks to deal with water, energy, food security, oceans and their resources, living and non living, as some of the critical development challenges with which humanity is faced.

  • At least one law association is already addressing this issue of the integration of SD. The International Law Association’s New Delhi Declaration states: “The principle of integration reflects the interdependence of social, economic, financial, environmental and human rights aspects of principles and rules of international law relating to sustainable development as well as of the interdependence of the needs of current and future generations of humankind.”[1]

  • National Sustainable Development Councils and Commissions have also played pivotal roles in the integration of the three pillars at the domestic level. However, like much actual implementation, integrated policy-making and service delivery is not easy work. It is not easy because it requires us to break out of policy silos and depart from familiar ways of doing business. Sustainable development done right constitutes what management specialists refer to as disruptive change. Such change is disruptive of the status quo. And many of us fear that kind of change, even when it is beneficial.

  • Going forward, we need strong national institutions and mechanisms that foster and facilitate integrated policy-making. Examples of good practice exist, such as integrated water resources management (IWRM) and integrated coastal zone management. Framework legislation can be used to anchor key sustainable development principles, e.g. in the South African National Environment Management Act, setting the stage for mainstreaming in more detailed legislation and regulation, as well as empowering the judiciary to draw on relevant principles for the purposes of interpretation.

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In any discussion of SD and the possible outcomes of the Rio process, we must also consider that the ubiquitous nature of technology has made it a powerful driver of innovation, new business, economic activity and knowledge but it has also spawned new forms of criminal activity, and a divide in how we define the “haves and “have nots” at both the level of the citizen and country. Perhaps some new body of legislation which will address these difficulties and help to bridge this technology divide and facilitate access might be considered.


  • Other potential jurisprudential Rio outcomes of hard or soft law could be the beginning or introduction of a new matrix for measuring sustainability which has been referred to as GDP+, or what some refer to as a Sustainable Development Index, as well as action on the calls for the possible consideration of a convention or consensus of business actors in relation to including principles of sustainability in their operating ethic. Rio+20 will very likely decide on principles and a process to define a set of Sustainable Development Goals (SDGs). These could knit together the panoply of international sustainable development commitments and targets into an action-oriented framework, with well defined targets and time lines. The universal nature of the SDGs would serve to underscore the comprehensive nature of the commitment of all countries to sustainable development.


  • It is still unclear as to how Rio+20 will influence the international governance structures for SD. Reform and strengthening of the institutional framework is firmly on the agenda in respect of the broader issue of sustainable development governance, as well as the narrower issue of international environmental governance, together with a perspective on enlarged international governance through the crafting of new institutions to oversee the instruments and processes of hard law. What matters more, perhaps, than the details of any specific proposal is that the institutions which evolve from the Rio+20process should be effective in fulfilling key functions, especially in fostering coherence and coordinated action. Post-Rio the international sustainable development institutions must be effective in agenda-setting and responding to emerging issues. It should be however, noted that even with elaboration, the international architecture cannot properly function in isolation of national structures. Hence attention must also be paid to the manner in which national and regional institutions will synergise with the international structures.

In the context of the transition to a global green economy with the objective of achieving sustainable development and eradicating poverty, part of the dialogue will clearly revolve around countries’ concern that the formulation of legal regimes arising from Rio+20 cannot be protectionist, must be equitable and transparent, must not exacerbate the trade and development divide between North and South and indeed between South and South and must make trade markets more accessible to developing countries particularly the smaller more vulnerable nation-states which have little trade and export capacity, and which because of their size and peculiar socio-economic characteristics and vulnerability, now have, and will continue to have miniscule shares of the international trade market.

In adopting their nationally-defined green economy policies, countries will be faced with questions such as how to craft policies that promote “greener” ways of doing business, while simultaneously advancing social goals such as job creation and gender equity. Governments will also have to develop national legal and regulatory frameworks which will enable and give rise to the investment necessary to construct national green economies. In this regard, it will be interesting to see how the law can contribute to this process by being used as a tool for social, economic and environmental engineering.

Finally, let us turn to another key conference objective and pose the question – what are some emerging legal themes and issues of sustainable development? In the legal development dialogue there is increased frequency in references to the rule of law, accountability, and access to justice as legal principles contributing to sustainable development. Voices are also rising in a caution to safeguard against the erosion of sound and established legal principles; these are finding mention in the concept of non-regression.

Law is the instrument by which we obtain justice. It is of critical importance in protecting people and planet, fostering prosperity and promoting peace in national and global societies. In addition, with globalisation and the shrinking of global physical and market spaces as a result of technology, the role and rule of law in sustainable development assume even greater importance. Professor Michael J Sandel in his work “Justice: What’s the Right Thing To Do,” writes – “To ask whether a society is just is to ask how it distributes the things we prize – income and wealth, duties and rights, powers and opportunities, offices and honours. A just society distributes these goods in the right way; it gives each person his or her due.” Rio+20 is fundamentally a conference on global justice for the planet and all people who live on it; and supporting bodies of hard and soft law which give effect to that justice must be one of the outcomes of Rio+20 in helping us to achieve ”the future we want.” .



[1] International Law Association, ILA New Delhi Declaration of Principles of International Law Relating to Sustainable Development, 2 April 2002. See also, Commission on Environmental Law of IUCN and International Council on Environmental Law, Draft International Covenant on Environment and Development, art. 13.

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