The Principle of Sustainability

Transforming law and governance

Klaus Bosselmann

• Verlag: Routledge
• Jahr: 2016
• ISBN:
  9781317019176
• Auflage: 2
• Thema: Law
• Thema: Law Theory & Practice

This book investigates how sustainability informs key principles and concepts of domestic and international law. It calls for the recognition of ecological sustainability as a fundamental principle to guide the entire legal system rather than just environmental legislation. To this end, the book makes a contribution to global environmental constitutionalism, a rapidly growing area within comparative and international environmental law and constitutional law. This 2nd edition has been fully revised and updated to take account of recent developments and new case law. The book will be a valuable resource for students, researchers and policy makers working in the areas of environmental law and governance.

1
THE MEANING OF SUSTAINABILITY

In this chapter I will argue that sustainability is a meaningful and powerful idea. The only reason why we may think otherwise would be that the term has been used in such a variety of meanings that it has become meaningless. Such criticism I suggest confuses the idea with the term. While the term may have been misused, the idea remains and continues to influence our thinking about the future.

What is sustainability?

Sustainability is both simple and complex. Herein it is similar to the idea of justice. Most of us intuitively know when something is not ‘just’ or ‘fair’. Similarly, most of us are fully aware of unsustainable things: waste, fossil fuels, polluting cars, unhealthy food and so on. We can also assume that many people have a clear sense of justice and sustainability. For example, they feel that a just, sustainable world is desperately needed no matter how distant an ideal it may be.

In its most elementary form sustainability reflects pure necessity. The air that we breathe, the water that we drink, the soils where our food comes from are essential to our survival. The basic rule of human existence is to sustain the conditions life depends on. To this end, the idea of sustainability is simple.

But sustainability is also complex, again like justice. It is difficult to categorically say what justice is. There is no uniformly accepted definition. Justice cannot be defined without further reflection on its guiding criteria, values and principles. Such reflection is subjective by nature and open to debate. The same is true for sustainability. It cannot be defined without further reflection on values and principles. Thus, any discourse about sustainability is essentially an ethical discourse.

The term sustainability triggers a similar response as the term justice. Everybody agrees with it, but nobody seems to know much about it. We have only a vague idea what sustainability involves or how it could be achieved. We may be able to imagine a sustainable society, but probably not to how to get there. On the other hand, a ‘just society’ reflects an ideal which may never be fully achieved. Ideals such as justice, peace and sustainability are fundamental to any society. We cannot do without them.

Sustainability and justice evoke similar sentiments. In some ways, however, sustainability appears more distant than justice. There are several reasons for that. First, many of today’s societies can be described as just, at least, in a sense of providing the means for peaceful conflict resolution. By contrast, none of today’s societies are sustainable. They are too deeply enmeshed in wasteful production and consumption to realize their unsustainable character. Second, the absence of justice is harder to bear than the absence of sustainability. Persisting unjust treatment of people by political regimes, for example, will not be tolerated for long. Either internal or external forces will revolt against it. Unsustainable treatment of the environment, on the other hand, is more likely to be tolerated. The reason is that people are less immediately affected by its impacts. The distance in space (global environment) and time (future generations) prevent us from acting with urgency.

Yet, perceiving sustainability with a similar immediacy as we perceive justice is entirely appropriate, precisely because the distances are vanishing. The world has become a small place and the future is already here. Climate change is an example in case. For a long time, the impacts of climate change appeared as distant possibilities. This is no longer the case. Now, climate change makes headlines on a daily basis. Since Al Gore’s ‘Inconvenient Truth’, Nicholas Stern’s report on the economic costs of global warming and George Bush’s acceptance of climate change as a ‘serious problem’, the media have firmly embraced climate change as the most pressing issue of our time.

As we realize the impacts of climate change, we begin to feel its morality as possibly the biggest challenge. How can we justify the fact that our actions today will almost certainly threaten the planet’s future? We are failing to meet the most basic obligation of each generation, i.e. to provide for the future of our children. This raises a moral question typical for sustainability and justice. How can we organize a fair distribution of goods and burdens throughout the generations?

It is hard to avoid the conclusion that sustainability fundamentally poses a challenge to the idea of justice. If a person lives at the expense of others, we consider this to be ‘unfair’. If rich societies live at the expense of poor societies, we consider this also to be ‘unfair’. Why then should it be acceptable to live at the expense of future generations and the natural environment? Whether or not sustainability requires, in fact, a rethinking of the idea of justice needs further consideration.¹ However, realizing the linkages between the two concepts also helps us to access the meaning of sustainability. It is an idea that refers to the continuity of human societies and nature.

Going back into history, we find that continuity of cultures and societies could only be ensured if ecological systems were sustained. Jared Diamond identified five factors contributing to the collapse of civilizations: climate change, hostile neighbours, trade partners, environmental problems and, finally, society’s response to its environmental problems.² The first four may or may not prove crucial for the demise of society, Diamond claims, but the fifth always does. The salient point, of course, is that a society’s response to environmental problems is completely within its control, which is not always true of the other factors. In other words, as his subtitle puts it, a society can ‘choose to fail’. The fact that choice is at the heart of continuity makes sustainability a matter of ethics. A society can choose to incorporate or to ignore the need to live within the boundaries of ecological sustainability.

It is at the level of basic values, therefore, where sustainability – like justice – needs to be conceived in the first place. For this reason, the vision of a ‘just and sustainable society’³ is not a distant dream, but conditional to any civilized society.

History gives us a clue why sustainability has always been a concern of society. The modern sustainability debate is by no means new, it only adopted the new focus on ‘sustainable development’. Whether or not this focus has helped to understand the principle of sustainability or deviate from it is the big question.

The answer that will be offered in this chapter is that the concept of sustainable development is only meaningful if related to the core idea of ecological sustainability. We will see that sustainable development needs to be understood as an application of the principle of sustainability, not the other way round. The vision of a ‘sustainable society’ is another, broader application of the same idea. Other applications can be seen in the terms ‘sustainable growth’, ‘sustainable economy’, ‘sustainable production’, ‘sustainable trade’ and so on. No matter how clear or confusing such terminological combinations are, they all employ a basic idea of sustainability.

With respect to ‘sustainable development’, the crucial question is how the concern for ecological sustainability is related to development, more precisely, the concern for prosperous development of people living today (intragenerational equity) and in the future (intergenerational justice). As will be shown, the sustainability debate since the Brundtland Report of 1987⁴ has, to a large extent, overlooked the importance of defining these relationships. Sustainable development does not call for a balancing act between the needs of people living today and the needs of people living in the future, nor for a balancing act between economic, social and environmental needs. The notion of sustainable development, if words and their history have any meaning, is quite clear. It calls for development based on ecological sustainability in order to meet the needs of people living today and in the future. Understood in this way, the concept provides content and direction. It can be used in society and enforced through law. The legal quality of the concept of sustainable development firms up once its core idea is being realized.

A short history of sustainability

The meaning of sustainability can best be understood when we ask whether there has ever been a sustainable society. If we interpret the Brundtland definition in a way that attributes equal importance to ecological, social and economic considerations, the benchmark for a sustainable society is extremely high. Was there ever equity between rich and poor, between sexes and ages, between countries and cultures and, at the same time, ecological sustainability and economic prosperity? Clearly, the answer is no. Pre-agricultural societies of hunters and gatherers have endured for a long time, the Australian Aboriginals, for example, for 60,000 years. Agricultural civilizations, like Ancient Egypt or the Indus valley, lasted for more than 5000 years; however, from what we know they were also shaped by inequity, oppression, violence and imbalances of all forms. If the characteristics of social and economic justice are part of the meaning of sustainability, then no society or civilization has ever been sustainable. Sustainability, in this sense, would remain a utopian idea, a distant goal that can never be achieved.

If, on the other hand, sustainability is brought back to its basics, the term becomes operable and meaningful. Before Brundtland, the term referred to a physical balance between human society and the natural environment. If the physical exchange processes between society and environment are upheld for a long period of time, a situation of sustainability can be observed. The question, whether societies have ever been sustainable, can be answered quite clearly and independently of whether they also have been ‘just’ or peaceful. So, w...

Inhaltsverzeichnis

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Foreword to the first edition
• Introduction
• 1 The meaning of sustainability
• 2 The principle of sustainability
• 3 Ecological justice
• 4 Ecological human rights and constitutions
• 5 The State as environmental trustee
• 6 Governance for sustainability
• References
• Index