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Sustainable Development Principle

The 1992 Rio Declaration refers repeatedly to sustainable development, confirming that it is anthropocentric (Principle 1) and requires development “to equitably meet developmental and environmental needs of present and future generations” (Principle 3), integrating environmental protection into the development process (Principle 4), poverty eradication and decreasing economic disparities (Principle 5), changes to production and consumption and appropriate demographic policies (Principle 8), technology development and transfer (Principle 9), an open international economic system (Principle 12), the full participation of women (Principle 20), the creativity, ideals, and courage of the youth of the world (Principle 21), the effective participation of indigenous people and other local communities (Principle 22), environmental protection during wars (Principle 24), peace, development, and environmental protection (Principle 25), and cooperation in the further development of international law (Principle 27).

The UNFCCC does not contain a binding “sustainable development” obligation. Moreover, its take on sustainable development places greater emphasis on economic growth than the Rio Declaration does. The preamble recognizes that all countries, especially developing countries, need access to resources required to achieve “sustainable social and economic development.” Article 2 states the treaty’s objective as stabilization of greenhouse gas concentrations in the atmosphere at a level and within a time frame sufficient to enable economic development to proceed in a sustainable manner. Article 3(4) sets out the principle that the parties have a right to, and should, promote sustainable development, but also notes that (accessed December 29, 2012).

13 Decision —1/CP.18,Agreedoutcome pursuantto the BaliAction Plan para. 72; Decision —6/CP.18, Report of the Green Climate Fund to the Conference of the Parties and guidance to the Green Climate Fund, Report of the Conference of the Parties on its eighteenth session, held in Doha from 26 November to 8 December 2012, Addendum, Part Two: Action taken by the Conference of the Parties at its eighteenth session (Advance version) (accessed April 4, 2013).

economic development is essential for adopting measures to address climate change. Article 3(5) adds that the parties should cooperate to promote a supportive and open international economic system that would lead to sustainable economic growth and development. Article 4(1)(d) obliges all parties to “promote” sustainable management, and promote and cooperate in the conservation and enhancement, as appropriate, of sinks and reservoirs of all greenhouse gases not controlled by the Montreal Protocol, including biomass, forests, and oceans. This is not a particularly meaningful obligation, since it is too vague to be enforceable. Article 4

(2)(a) allows developed countries and other Annex I countries to take into account the need to maintain strong and sustainable economic growth when taking measures to mitigate climate change. Thus, while the UNFCCC might be considered a means to achieve sustainable development, this concept plays a different role than it does in the Rio Declaration.

Some authors have argued that sustainable development has become accepted as a rule of customary international law that would oblige nations to exploit their resources in a manner that is sustainable.[1] This is a difficult argument to accept given the vagueness and utopian nature of the concept.[2] Moreover, State sovereignty gives countries the right to exploit their own resources as they see fit, subject to their corresponding responsibility to not cause environmental damage beyond their borders, as confirmed by Stockholm Declaration, Principle 21, and Rio Declaration, Principle 2. However, the concept of sustainable development can be taken into account in treaty interpretation, depending on the specific treaty language. Measures taken to address climate change are likely to be litigated at the WTO or the International Court of Justice (ICJ), where sustainable development has arisen in past cases.

In USShrimp, the WTO Appellate Body referred to sustainable development to support its interpretation of the general exception for measures relating to the conservation of exhaustible natural resources under GATT Article XX(g). The references to environmental protection and sustainable development in the preamble of the WTO Agreement meant that the generic term “natural resources” in Article XX(g) is not “static” in its content but is “evolutionary” and should take into consideration the international community’s efforts to protect living natural resources. As a result, the Appellate Body interpreted Article XX(g) as referring to the conservation of exhaustible living as well as non-living natural resources.[3]

In 2001, the WTO Doha Ministerial Declaration “strongly” reaffirmed the commitment to the objective of sustainable development, as stated in the Preamble to the Marrakesh Agreement. The Declaration also emphasizes “that the aims of upholding and safeguarding an open and nondiscriminatory multilateral trading system, and acting for the protection of the environment and the promotion of sustainable development can and must be mutually supportive.” The Declaration further recognizes that

under WTO rules no country should be prevented from taking measures for the protection of human, animal or plant life or health, or of the environment at the levels it considers appropriate, subject to the requirement that they are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, and are otherwise in accordance with the provisions of the WTO Agreements.[4]

The latter statement incorporates language from GATT Article XX(b) and the introductory language of GATT Article XX, as well as other WTO Agreements, all of which we analyze in depth in a later chapter. This Declaration is important for two reasons. First, it is relevant to the interpretation of WTO law. Second, it represents a renewed political commitment to sustainable development, in accordance with WTO rules, whose timing suggests acceptance of the preexisting WTO jurisprudence on this point.

Measures to address climate change are likely to qualify as relating to the conservation of an exhaustible natural resource, taking into account the linkage between climate change and sustainable development and WTO jurisprudence finding that clean air is an exhaustible natural resource.[5] Alternatively, they could be found to constitute measures necessary to protect human, animal, or plant life or health, in a manner similar to the analysis of the Appellate Body in Brazil—Retreaded Tyres.[6] Either way, the consistency of such measures with WTO law would still be subject to the requirement that they are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, and are otherwise in accordance with the provisions of the WTO Agreements.

Disputes regarding the interpretation and application of the UNFCCC are to be submitted to the International Court of Justice or arbitration, in accordance with UNFCCC Article 14(2). In Pulp Mills on the River Uruguay (Argentina v. Uruguay), the ICJ considered the concept of “sustainable development” in the context of a transboundary environmental dispute.[7] In that case, Argentina alleged that Uruguay had breached its obligations under the Statute of the River Uruguay,[8]

due to the effects of two pulp mills on the River Uruguay on the quality of the waters of the river and on the areas affected by the river. The ICJ initially characterized the case as one that “highlights the importance of the need to ensure environmental protection of shared natural resources while allowing for sustainable economic development” and stated that “account must be taken of the need to safeguard the continued conservation of the river environment and the rights of economic development of the riparian States.”[9] In its judgment, the Court noted that the object and purpose set forth in the Statute is for the parties to achieve “the optimum and rational utilization of the River Uruguay” by means of the “joint machinery” for cooperation. The Court also referred to its judgment in the Gabcikovo-Nagymaros case, in which it noted that the concept of sustainable development refers to the need to reconcile economic development with protection of the environment, but added that “[i]t is for the Parties themselves to find an agreed solution that takes account of the objectives of the Treaty.”[10] The Court also referred to “the need to strike a balance between the use of the waters and the protection of the river consistent with the objective of sustainable development” and added that, when any party wished to exercise its right to use the waters of the river, such utilization could not be considered to be equitable and reasonable if the interests of the other riparian State in the shared resource and the environmental protection of the latter were not taken into account. The Court considered that Article 27 of the Statute “embodied this interconnectedness between equitable and reasonable utilization of a shared resource and the balance between economic development and environmental protection that is the essence of sustainable development.”[11]

However, in Pulp Mills on the River Uruguay, the Court concluded that there was no clear evidence that substances with harmful effects had been introduced into the aquatic environment of the river through the emissions of the mill into the air and that there was no conclusive evidence that Uruguay had not acted with the requisite degree of due diligence or that the discharges of effluent from the mill had had deleterious effects or caused harm to living resources or to the quality of the water or the ecological balance of the river. The Court concluded that Uruguay had breached only its procedural obligations under the Statute, but not any substantive obligations. The Court considered that its finding ofwrongful conduct by Uruguay in respect of its procedural obligations per se constituted a measure of satisfaction for Argentina, and ordered no further remedies.[12] This case demonstrates the importance of conclusive evidence of environmental harm to secure an order for restitution or to pay compensation, which may be difficult to achieve given the current uncertainty regarding the causes and effects of climate change.

The foregoing analysis of the concept of sustainable development suggests that it does not create specific obligations for States with respect to climate change. Moreover, in treaties in which sustainable development forms part ofthe preamble or is otherwise incorporated into the treaty text, it can influence the interpretation of that treaty. However, this concept cannot be used to alter clearly stated obligations in treaties, whether treaties specifically on climate change or other treaties, such as those in the field of international economic law. Within these limits, the concept of sustainable development is relevant to interpret WTO law and international investment law in cases involving national and international environmental regulations related to climate change, as well as the UNFCCC and its related instruments.

  • [1] Virginia Dailey, “Sustainable Development: Reevaluating the Trade vs. Turtles Conflict at theWTO” (2000) 9 Transnational Law and Policy 331.
  • [2] Philippe Sands, “International Law in the Field of Sustainable Development: Emerging LegalPrinciples” in Winfried Lang (ed.), Sustainable Development and International Law (Springer, Berlin1995) 58.
  • [3] Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products(US—Shrimp), WT/DS58/AB/R, adopted November 6, 1998, paras. 129—31.
  • [4] Ministerial Declaration, Adopted on November 14, 2001, WT/MIN(01)/DEC/1, para. 6.
  • [5] Appellate Body Report, United States—Standards for Reformulated and Conventional Gasoline(US—Gasoline), WT/DS2/AB/R, adopted May 20, 1996.
  • [6] Appellate Body Report, Brazil—Measures Affecting Imports ofRetreaded Tyres (Brazil—RetreadedTyres), WT/DS332/AB/R, adopted December 17, 2007.
  • [7] Pulp Mills on the River Uruguay (Argentina v. Uruguay), (2010) (Judgment) (accessed August 20, 2012); Pulp Mills on the River Uruguay (Argentina v. Uruguay) (2006) (Provisional Measures) ICJ Reports 2006 113 (accessed August 23, 2012).
  • [8] United Nations, Treaty Series (UNTS), Vol. 1295, No. I-21425, 340, signed by Argentina andUruguay at Salto (Uruguay) February 26, 1975, entered into force September 18, 1976.
  • [9] Pulp Mills on the River Uruguay (Argentina v. Uruguay) (2006) para. 80.
  • [10] Pulp Mills on the River Uruguay (Argentina v. Uruguay) (2010) paras. 75—6; Gabcikovo-NagymarosProject (Hungary v. Slovakia) (1997) (Judgment) ICJ Reports 1997 paras. 140—1 (accessed August 23, 2012).
  • [11] Pulp Mills on the River Uruguay (Argentina v. Uruguay) (2010) para. 177; Art. 27 stipulates that [t]he right of each party to use the waters of the river, within its jurisdiction, for domestic,sanitary, industrial and agricultural purposes shall be exercised without prejudice to theapplication of the procedure laid down in Articles 7 to 12 when the use is liable to affect theregime of the river or the quality of its waters.
  • [12] Pulp Mills on the River Uruguay (Argentina v. Uruguay) (2010) paras. 264—5, 275—6.
 
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