Sustainable Development in the European Union

A General Principle

Matthew Humphreys

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781317047919
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book undertakes a critical appraisal of the concept of sustainable development in the European Union. In addition to existing issues of sustainability, it examines the development of a European "general principle" of sustainable development. This original, critical approach examines legal, political, and economic implications of the emergence of the principle and places the impact of such in local, national, intranational, and international contexts. While essentially focusing on the development of the principle, the discussion also includes a normative assessment of current policy and practice, and appraises European efforts in the light of international goals.

1 Introduction

Sustainable development attracts diverse meanings and interpretations of its requirements. Much to the frustration of advocates of particular aspects of the concept, how it is understood can vary. These variations are visible in its application in geographical contexts and specific contexts – from political forms of governance to construction industry standards.¹ Over a period of almost thirty years, the meaning and purpose of the term has been gradually defined in a range of international documents,² making its first appearance during the 1972 Stockholm Conference, the focus of which was to delineate the ‘rights’ of the human family to a healthy and productive environment by balancing two opposing positions.³ The first position was that of developed nations, who were anxious that the economic development of the third world could have both negative and irreversible consequences for the environment. The second position was that of developing nations, who did not want to have their right to economic development hindered. The notion of sustainable development therefore emerged as a compromise; recognising that the need to protect and defend the environment for future generations was an imperative goal for humankind.⁴

In 1980, the International Union for the Conservation of Natural Resources published the World Conservation Strategy. By asserting that the conservation of nature could not be achieved without the alleviation of poverty through economic development, this strategy provided the precursor to the concept of sustainable development.⁵ Later, the World Charter for Nature called for the resources of the world to be “managed to achieve and maintain optimum sustainable productivity”.⁶

A Commission, chaired by Gro Harlem Brundtland, was set up to address a growing concern regarding the “accelerating deterioration of the human environment and natural resources and the consequences of that deterioration for economic and social development”.⁷ After four years of deliberation, the Commission published its report entitled ‘Our Common Future’ in 1987, according to which:

The environment does not exist as a sphere separate from human actions, ambitions, and needs, and therefore it should not be considered in isolation from human concerns. The environment is where we all live; and development is what we all do in attempting to improve our lot within that abode. The two are inseparable.⁸

As such, the Commission defined sustainable development as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs,”⁹ a formulation at once both simple in its expression and complex in its formation and a mantra capable of many different meanings depending upon the perspective.

While the definition provided in the Brundtland Report remains the principal explanation of the concept of sustainable development, more recent attempts to define it further have resulted in various elements being added to it. For example, in 1992 the Rio Convention provided a more detailed approach to the concept in Agenda 21, cataloguing a number of subsidiary principles connected with the achievement of sustainable development, including: the right to development; inter and intra-generational equity; the precautionary principle; the polluter pays principle; and greater transparency, access to information, and participation in environmental decision-making.¹⁰

At Rio, the governments confirmed the interrelated nature of both environmental protection and economic development as being integral to the achievement of sustainable development. But it was not until 1997 and the Rio+5 that the third element – social development – was added. This rebalancing of the concept of sustainable development to include three fundamental pillars – the economic, the environmental, and the social – was reinforced in the International Law Association’s (ILA) 2002 report, considered below.

In their analysis of the principles, Cordonier Segger et al. looked specifically at the extent to which Principles 3, 4, and 5 had been integrated into the above-mentioned triad of sustainable development.¹¹ They found that nations are capable of integrating different forms of sustainable development, in different ways and to differing extents, at the national, regional, and international level – a conclusion supporting the idea that there is no precise or static definition of the term.¹²

The ever-evolving nature of sustainable development is also reflected in the fact that the concept is exposed to varying interpretations, often depending on the perspective concerned. One of the concept’s key strengths is its broad and flexible definition as this has enabled its near-universal acceptance by governments around the world. Yet, for some, this is also one of the concept’s primary weaknesses. The vague nature of the definition detracts from the practical impact and meaning of the concept, especially from the perspective of environmental protection.¹³

Some argue that although the broad concept of sustainable development was very successful in managing the political collision between ‘development’ and ‘environment’ throughout the 1980s and 1990s, it has proved inadequate for navigating the implementation phase. It has been further argued by advocates of the ‘zero growth’ approach to environmental economics that the term itself is oxymoronic, since development (and more specifically growth) can never be sustained, as we would eventually exhaust the supply of essential natural assets.¹⁴

Perhaps, therefore, the means by which States can achieve this relative obligation is by satisfying the absolute obligations imposed by, for example, the component principles of sustainable development, such as integration, environmental protection, the polluter pays and precautionary principles, and inter- and intra-generational equity. If this were the case, parallels could be drawn between the concept of sustainable development and the rule of law. Both seemingly impose a relative obligation on States, the achievement of which can be accomplished by satisfying the absolute obligations imposed by their component elements. The rule of law has been defined as an overarching rule, composed of various elements of law and legal practice to which States must adhere, such as proportionality, legal certainty, access to judicial review, and the protection of human rights.¹⁵

Similarly, sustainable development is composed of elements which are increasingly integrated into national, European and international law – perhaps more so than sustainable development itself ever will. The precautionary principle,¹⁶ environmental protection,¹⁷ and common but differentiated responsibility¹⁸ all feature in different legal systems. Although there is substantial literature discussing the true definition of the term ‘sustainable development’, it is worth remembering the limits of such discussions. In practice it seems that less and less importance is accorded to further defining the concept, suggesting to some that the matter, in the eyes of the politicians at least, has been put to rest.¹⁹ Many scholars have done the same and turned their focus on to how the concept, broad and vague though it is, can and is put into practice by those under a legal or moral obligation to do so. However, before examining these approaches further, it is important to understand better the concept’s philosophical foundations. To do so makes it easier to conceptualise the future prospects of sustainable development as a key feature of governmental responsibilities.

Commenting on the state of climate change policy, sustainable development more generally and the political environment, Ehrenfeld argues that “we need a new guiding political philosophy for this age of the earth and human history; this is no time for political business as usual”.²⁰ For some, this comment might be considered hopelessly optimistic, hopelessly pessimistic, or perhaps just hopeless. After all, changing political systems is an exceedingly difficult task. However, as change is the human experience, even stultifying, reactionary governance systems, which oppose their own reform, do change in the end. History is littered with such examples, from the remarkable changes in France between Louis XIV’s regime and the pre-Napoleonic Directory through to pre- and post-apartheid South Africa.

However, whether this means a new political philosophy can be widely accepted is open to some doubt – there are many more examples of minor reforms than there are of truly transformational changes. Anything is possible, of course. Louis XIV and the dominant philosophy in Bourbon France in 1643 at the time of his accession suggested kings were endowed by God with the authority to rule over their subjects as they saw fit. The revolution that followed a century and a half later overturned everything, not least that philosophy, 400 years after which an entirely different governance theory underpins French society. Viewed in this light, Ehrenfeld’s call has precedents even if the obstacles to achievement remain high. Indeed, it may be that a complete revision of political theory is not necessary to achieve sustainable development.

Though often considered a modern appearance in legal frameworks, sustainable development has a long history. The ideas underpinning the concept have many potential origins, including social contract theory. The willing acceptance by citizens of limitations to a generalised free existence in return for security, orderliness, justice, and an improved quality of life is a social governance norm enshrined since the earliest civilisations,²¹ and many theories, from Socrates to Thomas Hobbes, have sought to explain this. An implicit component of the social contract is that citizens benefit more from the structured orderliness of society than they would from what Hobbes termed the “state of nature” in all its chaotic horror. Such conceptions of contract theory emphasise the duty of citizens to follow the rule of law in order to reap the benefits of society, most generally those of orderliness and security. But a contract is a two-way agreement and governments have a responsibility to their citizens to fulfil the other side of the bargain. It is this acceptance of governmental responsibility which is an important marker in understanding the aims and aspirations of sustainable development theory.

In the Second Treatise on Civil Government, Locke shifted the onus of responsibility from citizen obedience to a government’s obligation to provide for its citizens. Failure to meet this responsibility, in Locke’s view, could reasonably be considered justification for the rebellion of the governed. Out of this classical liberal view of social contract theory comes the guiding philosophy that is embraced by even the most conservative of European or North American politicians. This view, to some, provided a liberal philosophical legitimisation of many, if not all, revolutions. But there is no settled view, even among social contract theorists, as to when system of governance should be changed to renew the contract, or to rebalance the relationship between the government and the governed. The starting point in this debate remains consideration of the question: what responsibility does a government have for its citizens?

If the first duty of government is the protection of the physical security of citizens, which is in many ways the basis of the social contract as Socrates illustrated it, our conception of what is needed to secure physical security is influenced by a changing understanding of what is a safe environment. To the protections offered by States to their peoples from the physical threats posed by other States, or from criminality from within the State, we can add health protections, human rights protections, equality protections, and, more latterly, environmental protections. The United Nations Charter on Human Rights is, essentially, a laundry list of the rights now considered basic and foundational to a society that legitimates a government’s authority. The list is already much extended to include structural protections, such as the provision of a criminal and civil justice system, and substantive protections, such as rights to free speech, and rights to contribute to the process of government. Thus sustainable development is perhaps more accurately described not as a new philosophy as Ehrenfeld asserts, but as a logical addition to the list of governance responsibilities. However, when applied to the social contract, the concept is made up of different but interrelated components – environmental health, social and societal equity, and the regard for posterity.

The importance of protecting environmental health for human well-being has gained significant traction in recent decades, and scientific discovery has helped to spread this understanding in the western world. Two important lessons have come from understanding environmental systems. First of these lessons is that everything is interconnected and dependent in some way on something else. Lynton Caldwell, a key contributor to the 1969 US National Environmental Policy Act, commented that, “people commonly perceive their ‘environment’ as a totality of numerous separate interrelationships that have no apparent connections. In fact, these interactive relationships are ultimately, even though remotely, connected”.²² Caldwell’s assertion is further supported by the detailed observations of biologists and ecologists such as Wilson.²³ Scientific appreciation of environmental interconnectedness provides the rationale for protecting and sustaining natural systems due to human reliance on those systems. The second lesson suggests, however, that an appreciation of interconnectedness must come before a scientific understanding of those connections.

The quest for scientific understanding is often understood in terms of a journey to a particular end point where conclusions become apparent. For some, however, there will always be mysteries that cannot be understood by science; others will focus on those questions that can be answered and leave the question of interconnected systems and impact hanging. A common tension in the debate about sustainable development, and in understanding what the concept means, relates to the extent to which the concept requires scientific evidence before a particular action is undertaken, or, perhaps more often, before a proposed development is avoided on the basis of the risks posed to our futures. John Locke himself, and his empiricism, teach us that we should consider the evidence for what we think and what we do carefully.

What does this mean in terms of the amount of evidence needed regarding the risk to an ecosystem before any sustainable development is contemplated? Are we in a positi...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Table of cases
• Table of EU secondary legislation
• Table of other authorities
• Acknowledgements
• Preface
• 1 Introduction
• 2 Sustainable development: concept, principles, and practice
• 3 Sustainable development and general principles of EU law
• 4 The precautionary principle and sustainability in EU environmental protection
• 5 The polluter pays principle: economic aspects of sustainability in the EU
• 6 Public participation and access rights in EU law
• 7 Sustainable development in EU external relations
• 8 Conclusion
• Index