Conceptual and Normative Characteristics

Subsequently, we shall revisit the origins (Sect.5.1.1.1.1), core conceptual contents (Sect.5.1.1.1.2) as well as general legal effects (Sect.5.1.1.1.3) of SD.

5.1.1.1.1 The Origins of SD as a Political Objective

The concept of SD has evolved remarkably over the past decades. While the origins of the notion of sustainability lie in theories on sustainable forest management from the eighteenth century, it had increasingly been referenced in the context of whole-some economic growth since the 1970s.²

SD as a concept made its appearance on the stage of international politics in 1980 through the publication of the International Union for Conservation of Nature (IUCN) World Conservation Strategy, which carried the subtitle Living Resource Conservation for Sustainable Development.³ When the Brundtland report was released in 1987, the SD gained significant popularity. According to the report, SD was defined as a ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs.’⁴

In the following, ‘SD featured prominently in the 1992 Rio Declaration on Environment and Development, which in its Principle #1 puts human beings at the centre of concerns for SD.’⁵As another result of the Rio conference, a far-reaching process regarding a‘new global partnership for sustainable development’was set in

1The following section essentially summarises the core arguments I have put forward in Oehl (2019).

2Proelß (2017), para. 50; Gehne (2011), pp. 11, 21 with reference to the UN GA (1970) Interna-tional development strategy for the second United Nations development decade, 24 October 1970, UN Doc. A/RES/2626(XXV),http://www.un-documents.net/a25r2626.htm(last accessed 14 May 2021); cf. Oehl (2019), p. 7.

3Cf. Oehl (2019), p. 7 pointing also to the prior UN GA International Development Strategy for the Third United Nations Development Decade, 5 December 1980, UN Doc. A/RES/35/56; cf. Beyerlin (2013), para. 3.

4World Commission on Environment and Development (1987) Report: our common future, 4 August 1987, UN Doc. A/42/427,http://www.un-documents.net/our-common-future.pdf (last accessed 14 May 2021), chapter 1, para. 49; Oehl (2019), p. 7.

5Oehl (2019), p. 7. Moreover, it is expressly referred to in principles 4, 5, 7, 8, 9, 12, 20, 21, 22, 24 and 27 of the 1992 Rio Declaration on Environment and Development, 12 August 1992, UN Doc.

A/CONF.151/26 (Vol. I), http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm (last accessed 14 May 2021); cf. ibid.

176 5 Fostering the Effectiveness of TCL

motion by the so-called Agenda 21⁶—a process, which eventually led to the central status of SD within international relations today.

The 2000 Millennium Development Goals featured environmental sustainability as Goal #7. In 2002, the Johannesburg World Summit was dedicated entirely to SD. The World Summit on Sustainable Development (WSSD) Plan of Implementa-tion, which resulted from it,‘explicitly built on the achievements since the 1992 Rio conference and covered a broad range of SD-related issues from poverty eradication, consumption and production patterns, natural resource management as base of economic and social development, health and SD to the institutional framework for SD.’⁷ In 2005, the UN General Assembly in its World Summit Outcome Resolution reaffirmed SD as a‘key element of the overarching framework of United Nations activities.’⁸

The international community reiterated its commitment to SD at the so-called Rio + 20 conference in 2012. Henceforth, SD was particularly being summarised by referring to‘three constituent elements’: economic as well as social development and environmental protection.⁹ As a means to concentrate the common efforts on concrete objectives, the outcome document demanded the compilation of sustainable development goals (SDGs).¹⁰

The 2030 Agenda for Sustainable Development, which carries the title Transforming Our World, spells out these SDGs. The UN General Assembly, in its 2015 Resolution, describes the introduction of this agenda as an‘historic decision on a comprehensive, far-reaching and people-centred set of universal and transfor-mative Goals and targets.’¹¹As I have put it elsewhere,

[t]heSD Agendamarks the end point of the evolution of SD from a notion originating in forest management and later gaining relevance in environmental protection policy tothe universal political agenda of our time. Mindful of the great weight this agenda carries, the UN General Assembly describes it as:“. . .an Agenda of unprecedented scope and signifi -cance. It is accepted by all countries and is applicable to all, taking into account different national realities, capacities and levels of development and respecting national policies and

6Cf. Beyerlin (2013), para. 5; Oehl (2019), p. 8.

7Oehl (2019), p. 8 referring to the Plan of implementation of the world summit on sustainable development, 4 September 2002, UN Doc. A/CONF.199/20, http://www.un.org/esa/sustdev/

documents/WSSD_POI_PD/English/WSSD_PlanImpl.pdf(last accessed 14 May 2021).

8UN GA (2005) World summit outcome, 24 October 2015, UN Doc. A/RES60/1,http://www.un.

org/en/ga/search/view_doc.asp?symbol¼A/RES/60/1 (last accessed 14 May 2021), para. 10;

cf. Oehl (2019), p. 8.

9UN GA (2012) The future we want, 11 September 2012, UN Doc. A/RES/66/288,http://www.un.

org/ga/search/view_doc.asp?symbol¼A/RES/66/288&Lang¼E(last accessed 14 May 2021), para.

1; Oehl (2019), p. 8.

10UN GA (2012) The future we want, 11 September 2012, UN Doc. A/RES/66/288,http://www.un.

org/ga/search/view_doc.asp?symbol¼A/RES/66/288&Lang¼E(last accessed 14 May 2021), para.

246; Oehl (2019), p. 8.

11UN GA (2015) Transforming our world: the 2030 Agenda for Sustainable Development, Reso-lution A/RES/70/1, 25 September 2015,http://www.un.org/ga/search/view_doc.asp?symbol¼A/

RES/70/1&Lang¼E(last accessed 14 May 2021), para. 2; Oehl (2019), p. 8.

priorities. These are universal goals and targets which involve the entire world, developed and developing countries alike. They are integrated and indivisible and balance the three dimensions of sustainable development.”¹²

5.1.1.1.2 The Core Conceptual Contents of SD

Over the past decade, the core conceptual contents of SD have emerged quite clearly.

While the Brundtland report was initially based on especially anintergenerational understanding of SD, thus emphasising planetary conservation for the sake of future generations, SD gradually evolved‘to a concept that puts human beings and their need for sufficient socio-economic development at the centre’, therefore integrating intragenerational elements, ‘yet without fully abandoning the intergenerational perspective.’¹³

When it comes to legal terms, principle 4 of the non-binding 1992 Rio Declara-tionfirst put the concept of SD into the operational language of what resembles a legal norm by stating that

[i]n order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.¹⁴ As Barral points out, the synthesis of the various international documents featur-ing SD exhibits a remarkable degree of consistency with regard to the core concept of SD.¹⁵Since the adoption of the 1997 Programme for the Further Implementation of Agenda 21, SD is generally being referred to as requiring‘the integration of its economic, environmental and social components.’¹⁶ The 2002 WSSD Plan of Implementation describes SD as consisting of the ‘interdependent and mutually reinforcing pillars’of‘economic development, social development and environmen-tal protection.’¹⁷This definition of SD has, worded only slightly differently, been used repetitively in numerous international documents, including the 2005 World

12UN GA (2015) Transforming our world: the 2030 Agenda for Sustainable Development, Reso-lution A/RES/70/1, 25 September 2015,http://www.un.org/ga/search/view_doc.asp?symbol¼A/

RES/70/1&Lang¼E(last accessed 14 May 2021), para. 5; Oehl (2019), pp. 89.

13Oehl (2019), pp. 910, referring to Barral (2012), pp. 380–381 who‘defines the element of socio-economic growth as a matter of theintragenerational, the element of environmental protec-tion as theintergenerational equity that SD postulates’.

14Oehl (2019), p. 10.

15Barral (2012), p. 380; cf. Oehl (2019), pp. 1011 with an overview of relevant documents.

16UN GA (1997) Programme for the further implementation of agenda 21, 28 June 1997, UN Doc.

A/RES/S-19/2, https://digitallibrary.un.org/record/244113 (last accessed 14 May 2021), annex, para. 3; Oehl (2019), p. 12.

17UN (2002) Plan of implementation of the world summit on sustainable development, 4 September 2002, UN Doc. A/CONF.199/20, http://www.un.org/esa/sustdev/documents/WSSD_POI_PD/

English/WSSD_PlanImpl.pdf(last accessed 14 May 2021), para. 2; Oehl (2019), p. 12.

178 5 Fostering the Effectiveness of TCL

Summit Outcome,¹⁸the Rio+20 outcome document‘The Future We Want’¹⁹or the SD Agenda.²⁰

These definitions of SD, as well as the ones employed by international legal scholars,²¹convey the‘three constituent elements of SD: environmental protection, social and economic development.’²²Consequently, the core conceptual content of SD‘can be defined as the consolidation of socio-economic development and envi-ronmental protection.’²³

Around these conceptual contents of SD, international legal scholarship has conceptualised what it defines as International SD Law—the corpus of international law, which addresses the relevant intersections of international environmental, economic and social law, towards SD.²⁴ This body of law has been further characterised by the 2002 New Delhi PrinciplesRelating toSD, which have been elaborated by the International Law Association. The non-exhaustive seven princi-ples include the duty of States to ensure sustainable use of natural resources; the principle of equity and the eradication of poverty; the principle of common but differentiated responsibilities; the principle of the precautionary approach to human health, natural resources and ecosystems; the principle of public participation and access to information and justice; the principle of good governance; and the principle of integration and interrelationship, in particular in relation to human rights and social, economic and environmental objectives.²⁵

5.1.1.1.3 The General Legal Effects of SD

Apart from these characterisations of SD, naturally its legal effects are particularly pertinent to our further discussion. They can generally be said to be twofold.

18UN GA (2005) World summit outcome, 24 October 2015, UN Doc. A/RES60/1,http://www.un.

org/en/ga/search/view_doc.asp?symbol¼A/RES/60/1(last accessed 14 May 2021), para. 10.

19UN GA (2012) The future we want, 11 September 2012, UN Doc. A/RES/66/288,http://www.un.

org/ga/search/view_doc.asp?symbol¼A/RES/66/288&Lang¼E (last accessed 14 May 2021), para. 3.

20UN GA (2015) Transforming our world: the 2030 Agenda for Sustainable Development, Reso-lution A/RES/70/1, 25 September 2015,http://www.un.org/ga/search/view_doc.asp?symbol¼A/

RES/70/1&Lang¼E(last accessed 14 May 2021), para. 2; cf. Oehl (2019), p. 12.

21Oehl (2019), p. 12 pointing to the characterisation of‘SD as the“conceptual bridge”between right to social and economic development and the imperative to protect the environment’ by Cordonier Segger and Weeramantry (2017), p. 6.

22Oehl (2019), p. 12.

23Oehl (2019), p. 12.

24CISDL (2005) What is sustainable development law, CISDL concept paper, Montreal, 2005, http://cisdl.org/public/docs/What%20is%20Sustainable%20Development.pdf (last accessed 14 May 2021), p. 1; Oehl (2019), p. 13.

25ILA (2002); Oehl (2019), p. 13.

For one, it constitutes a primary norm that obliges states to‘act sustainably’, i.e. to carry out a balancing exercise between the social, economic and environmen-tal pillars of SD before taking (regulatory, e.g. legislative, or other) action. This effect is for instance reflected in the casesGabcikovo-NagymarosandPulp Mills.²⁶ Barral insofar describes an ‘obligation of means’, which states need to abide by. They only need to make the necessary efforts of carrying out the balancing exercise and are not required to arrive at a specific result.²⁷

For the other, SD also exhibits a methodical dimension in that it serves as a guideline how legal obligations shall be interpreted.²⁸ This is naturally the effect, where SD forms part of a specific treaty, such as the WTO agreement that was subject to the WTO Appellate Body’s decision in US-Shrimp.²⁹Accordingly, SD has been said to add‘colour, texture and shading’to the challenge of interpreting the term‘exhaustible natural resources’according to Article XX(g) GATT, thus being employed as an interpretation guideline.³⁰