Sustainable development in national and international law

Ackowledgements
Introduction
Contents
Contributors

Part I Theoretical Perspectives and Legal Thinking on Sustainable Development

Chapter 1.1 1987-2007: “Our Common Future” Revisited
Hans Christian Bugge
1 The Commission and its Work
2 The Report’s General Presentation of Sustainable Development
3 Sustainable Development Applied to Specific Policy Areas
3.1 International Economy
3.2 Population
3.3 Food
3.4 Biodiversity
3.5 Energy
3.6 Industry
3.7 Urban Issues, International Commons, and Peace and Security
4 Proposals for Institutional and Legal Change
5 Summing up: Back to the Principle of Sustainable Development

Chapter 1.2 A Fundament and Two Pillars; The Concept of Sustainable Development 20 Years after the Brundtland Report
Gerd Winter
1 The Report
2 The Three-pillar Concept of Sustainability
3 The Concept of Future-proof Politics
4 The WCED Version
4.1 The Level of Material Exchange Between Society and Nature
4.2 The Level of Societal Reflection and Regulation
4.3 The Relationship Between Industrial and Developing Countries
5 The Open Question of Scale
6 The Open Question of Juridification
6.1 Contributions of WCED
6.2 The Terminology of Principles
6.3 Levels and Areas of Juridification
7 Conclusion

Chapter 1.3 Theory for Sustainable Development; Towards or Against?
Staffan Westerlund
1 Introduction
2 Three Environmental Legal Eras
3 Research Aspects
3.1 Against or Towards
3.2 Pre-environmental Legal Research
3.3 Old Environmental Legal Research
3.4 New Environmental Legal Research
3.5 Intermediate Conclusion: Against or Towards
4 Theory Needs
5 Concluding Remarks

Chapter 1.4 Sustainability and a New Concept of Liberty
Felix Ekardt
1 Liberty in the Context of the “Non-sustainability” of Western Civilization
2 Roots of “Non-Sustainability”
3 Liberty and Universal Justice
4 Sustainable Liberty
5 No Liberty Without Balancing
6 No Liberty Without Rules – The “Global Marshall Plan” Idea

Part II Sustainable Development in International Law

Chapter 2.1 Sustainable Development in International Law
Marie-Claire Cordonier Segger
1 Introduction
2 Making Development ‘Sustainable’?
2.1 Evolving Definitions of ‘Development’
2.2 Origins of ‘Sustainable Development’
2.2.1 Prior to the 1987 Report of the UN Commission on Environment and Development
2.2.2 The 1992 United Nations Conference on the Environment and Development and the United Nations Commission on Sustainable Development
2.2.3 The 1997 UN General Assembly Special Session on Sustainable Development
2.2.4 The 2002 World Summit for Sustainable Development (WSSD)
2.3 An International Meaning for ‘Sustainable Development’?
3 Sustainable Development in International Law: Reconceptualizing the Debate
3.1 The Legal Status of Sustainable Development
3.2 A Principle of Sustainable Development Versus a Sustainable Development Purpose
3.3 Sustainable Development as a Customary Principle of International Law
3.3.1 A Fundamentally Normative Character for Sustainable Development
3.3.2 General State Practice on Sustainable Development
3.3.3 Opinio Juris on Whether States are Bound by a Principle of Sustainable Development
3.4 Sustainable Development as an Object and Purpose of International Law
3.4.1 The Meaning and Effect of an ‘Object and Purpose’ in International Treaty Law
3.4.2 Sustainable Development as an Objective or ‘Purpose’ of International Law
3.4.2.1 Sustainable Development in the UN FCCC and the Kyoto Protocol
3.4.2.2 Sustainable Development in the UN Desertification Convention
3.4.2.3 Sustainable Development in the UN CBD and the Biosafety Protocol
3.4.2.4 Sustainable Development in the FAO Seed Treaty
4 Proposed Principles of International Law on Sustainable Development
4.1 The Process of Making Principles on Sustainable Development
4.2 The ILA New Delhi Declaration of Principles of International Law Relating to Sustainable Development
4.2.1 The Duty of States to Ensure Sustainable use of Natural Resources
4.2.2 The Principle of Equity and the Eradication of Poverty
4.2.3 The Principle of Common but Differentiated Obligations
4.2.4 The Principle of the Precautionary Approach to Human Health, Natural Resources and Ecosystems
4.2.5 The Principle of Public Participation and Access to Information And Justice
4.2.6 The Principle of Good Governance
4.2.7 The Principle of Integration and Interrelationship, in Particular in Relation to Human Rights and Social, Economic and Environmental Objectives
4.3 A Principled Approach to International Law on Sustainable Development
4.3.1 Sustainable Development as an Interstitial Norm
4.3.2 Defining International Law on Sustainable Development, and the Normative Force of a Commitment ‘to Promote Sustainable Development’

Chapter 2.2 Between Process and Substance; Sustainable Development in the Jurisprudence of International Courts and Tribunals
Alan Boyle
1 Introduction
2 Is There a Justiciable ‘Right’ to Sustainable Development?
3 Sustainable Development in the Case Law
3.1 The International Court of Justice (ICJ)
3.2 The European Court of Human Rights (ECHR)
3.3 The African Commission on Human and Peoples Rights (ACHPR)
3.4 The Inter American Commission and Court of Human Rights (IACHR)
3.5 The United Nations Human Rights Committee (UNHRC)
4 Conclusions

Chapter 2.3 Development – The Neglected Dimension in the Post-Rio International Law of Sustainable Development
Nico Schrijver
1 Introduction
2 The Nature and Role of Public International Law
3 Sustainable Development – Exploring the Concept
4 The Inception of Sustainable Development in International Law
5 The Evolution of International Environmental Law and the International Law of Development Towards Sustainable Development
6 An International Law of Sustainable Development under Construction
7 Concluding Observations

Chapter 2.4 The Principle of Common but Differentiated Responsibilities as Contributing to Sustainable Development through Multilateral Environmental
Agreements
Tuula Kolari
1 Introduction
2 The Essence of the Principle of Common But Differentiated Responsibilities
3 The Concept of Sustainable Development in Brief
4 International Developments with the Concepts
5 CBDR and Sustainable Development Reinforce and Require the Application of Each Other
6 Concluding Remarks and Future Outlook

Part III Sustainable Development and International Trade and Investment Law

Chapter 3.1 Sustainable Development in World Trade Law; A Short History
Markus W. Gehring
1 Contours of Sustainable Development within International Law
2 World Trade Law as an Instrument for Sustainable Development?
2.1 Negotiating Sustainable Development in the WTO?
2.2 ‘Sustainable Developments’ in Recent WTO Disputes?
3 New Instruments in Trade Law for Sustainable Development
4 Sustainable Development in the Doha Development Agenda
5 Conclusion

Chapter 3.2 Any Steps Towards Sustainability in International Investment Agreements? A Study of BITs of Nordic Countries and the US–Chile Free Trade Agreement Concerning the Potential to Conflict with Health and Environmental Measures
Åsa Romson
1 Background
1.1 Aim and Scope of the Article
2 BITs by the Nordic Countries
2.1 Reformulation of the Preamble
2.2 Traditional Approach in Core Paragraphs
2.3 No Incentives for Technology Transfer
3 The US –Chile Free Trade Agreement
3.1 Environmental Chapter Without Teeth
3.2 Development of the Fair and Equitable Treatment and National Treatment Provisions
3.3 Clarifying Indirect Expropriation and Regulatory Taking
3.4 Innovations in Dispute Settlement
3.5 Narrow Scope for Technology Transfer
4 Conclusions

Chapter 3.3 Transparency, Participation and Accountability in International Economic Dispute Settlement; A Sustainable Development Perspective
Nathalie Bernasconi-Osterwalder
1 Introduction 323
2 Access to Information and Public Participation as a Human Right and a Prerequisite for Achieving Sustainable Development
2.1 The Linkage Between Access to Information, Public Participation and Sustainable Development
2.2 A Rights-based Approach to Access to Information and Public Participation
3 The Sustainable Development Aspects in International Economic Dispute Settlement
3.1 The Growing Importance of International Economic Dispute Settlement
3.2 Trade Disputes at the WTO
3.3 International Investment Disputes
4 Lack of Transparency and Public Participation in International Economic Dispute Settlement
4.1 Dispute Settlement Procedures at the World Trade Organization (WTO)
4.2 International Investment Arbitration
5 Final Remarks and Recommendations

Chapter 3.4 Corporate Environmental Accountability as a Means for Intragenerational Equity; ‘Hidden’ Environmental Impacts in the North-South Conflict
Katinka Jesse and Marie-José van der Heijden
1 Hidden Environmental Impacts
2 Banking Approaches
2.1 The IFC and the Equator Principles
2.2 Some Drawbacks
2.3 Conclusion
3 Soft Law Instruments: the OECD Guidelines and the (draft) UN Norms
3.1 OECD Guidelines for Multinational Enterprises
3.2 UN Draft Norms on the Responsibilities of TNCs and Other Business Enterprises
3.3 Conclusion
4 Extraterritorial Regulation on TNCs
4.1 Extraterritoriality: Some Preliminary Remarks
4.2 The Example for Extraterritorial Regulation: The US ATCA
4.3 Extraterritorial Regulation Based on General Tort Law: The English Example
4.4 Dutch Possibilities to Incorporate Principles into Hard Law Mechanisms: Batco And Beyond
5 Conclusion

Chapter 4.1 Sustainable Development in EC Law
Ludwig Krämer
1 Primary EC Law
2 Secondary EC Legislation
2.1 Fisheries Policy
2.2 Regional Policy
2.3 Development Policy
2.4 Energy Policy
2.5 Environmental Policy
3 Policy Statements
4 Discussion of the Findings
5 Concluding Remarks

Chapter 4.2 Sustainable Development and EU Waste Law
Nicolas de Sadeleer
1 Introduction
2 Sustainable Development and Waste
3 Sustainable Waste Management Enhanced in a Flurry of Soft Law Instruments
4 Unsustainable Trends
5 Waste Management Hierarchy: Emphasis Being Given to Prevention
6 The Scope of the Waste Legislation Impinges upon the Objective of Prevention
7 Scope of the Waste Definition: Economic Reutilization
8 Scope of the Waste Definition: The Difference Between Waste and By-products
9 Recovery Operations: The Production of Secondary Materials
10 How to Enhance a Sustainable Approach: Look at Waste not in Isolation but as Products
11 Conclusion

Chapter 4.3 EC Legislation on Public Procurement and Sustainable Development
Ari Ekroos
1 Introduction
2 Studies on Green Public Procurement
3 Policy Background and Conditions Related to Principles
3.1 New Environmental Policy – Product Approach
3.2 Sustainability Goals and Competition Law Objectives
4 Public Procurement Legislation in Force
4.1 ‘New’ Directives
4.2 Jurisprudence and Some Other Relevant Documents
4.3 Environmental Matters – General
4.4 Environmental Requirements in Technical Specifications and other Requirements
4.5 Contract Award Criteria
5 Development Tasks and Challenges
6 Final Remarks

Chapter 4.4 Bioenergy as Integration of the Sustainable Development Principle in Energy Policy; The Particular Case of EC Biomass Regulation
Catherine Banet
1 Introduction
1.1 Integrating Sustainable Development into Energy Policy: Goals And EC Legal Achievements
1.2 Biomass Regulation Challenges
2 Definition of Biomass under EC Law
2.1 The Existing Legislation Defining Biomass
2.2 Problems Related to the Application of the Current Definition of Biomass
2.3 Solutions under Evaluation
3 Regulation of the Production of Bioenergy from Biomass under EC Law
3.1 The Different Modalities of Biomass Conversion
3.2 The Applicable Legal Regime to the Different Biomass Conversion Methods
4 Regulation of Bioenergy Produced from Biomass under EC Law
4.1 The Different Uses of Bioenergy From Biomass
4.2 The Regulation Of Bioenergy Utilisations of Biomass
4.2.1 Power and Heat Generation From Biomass
4.2.2 Power Generation From Biomass
4.2.3 Heat Production From Biomass
4.2.4 Transport/biofuels Production From Biomass
4.3 Certification of Biomass as an Answer to Sustainability Issues
4.3.1 Certification as a Safeguard of Sustainable Bioenergy Use
4.3.2 Certification as a Safeguard of Sustainable Biomass Production
5 EC Regulatory Framework for the Promotion of Biomass as a Source of Energy
5.1 EC Legal Instruments Designed to Promote Biomass
5.1.1 General Regulatory Framework for the Promotion of Renewable Energy Sources
5.1.2 Instruments Designed to Promote the Use of Biomass in the EU
5.2 Enabling the Availability of Biomass on the Internal Market: Trading Issues
5.3 Enabling the Use of Energy From Biomass: Access to the Grid
6 What did the Brundtland Report do to Legal Thinking and Legal Development?…
7 … And Where can we go From Here?

Part v Operationalization of Sustainable Development: Integration, Diversity and Complexity

Chapter 5.1 Sustainable Development: an Operational Principle? Lessons from the Spanish Experience on Intensive Urban Growth
Angel-Manuel Moreno
1 Introduction
2 Land Development, Building Activity and the Environment
2.1 Some Facts and Figures
2.2 Environmental Impact of This Pattern of Urban Growth
2.3 International Repercussions
3 Town Planning and Land Development in Spain: Basic Features
3.1 A Highly Regulated Activity
3.2 Allocation of Powers
4 The Environment versus Land Development, under the Law
4.1 Constitutional Recognition of the PSD
4.2 The PSD in the Legislation on Town Planning and Land-use
4.3 Environmental Conditioning of Land Use and Building Activity
4.3.1 Preservation of Watercourses and the Coastal Area
4.3.2 Nature Conservation
4.3.3 Noise Control and Air Pollution
4.3.4 Building Regulation
4.3.5 Landscape Protection
4.3.6 Spatial Planning
4.3.7 Environmental Impact Assessment for Land Use Plans
5 The Enforcement Gap
5.1 Administrative Tolerance and Inaction as a Major Shortcoming; The Social Context
5.2 Operationalisation of the PSD in Courts
6 Conclusions: Making the PSD an Operational Legal Rule

Chapter 5.2 A Sustainable Criminal Law – Criminal Law for Sustainability
Eva Westerlund
1 Introduction
2 Sustainable Development and its Relation to the Precautionary Principle
3 Sustainable Development in the Swedish Environmental Code
4 To Protect the Environment Through Criminal Law
5 To Protect the Administrative System
6 To Protect the Environment As Such
7 How can Sustainable Development be Used in Interpretation of Existing Rules?
8 How can Sustainable Development be Used to Make New Rules?
9 Concluding Remarks

Part VI Climate Change, Energy and Sustainable Development

Chapter 6.1 Sustainable Development within the Climate Change Regime
Massimiliano Montini
1 Introduction: The Legal Understanding of the Concept of Sustainable Development
2 The Interplay Between Sustainable Development and Climate Change: The Climate Change Perspective
3 The Interplay Between Sustainable Development and Climate Change: The Sustainable Development Perspective
4 Sustainable Development In Practice Within the Climate Change Regime: The Definition Of Sustainable Development Criteria for CDM Projects
5 Conclusion: Can CDM Projects Contribute to Achieving Sustainable Development?

Chapter 6.2 Climate Change and the Mandate of Sustainable Development: Observations from a Legal Perspective
Christina Voigt
1 Introduction
2 Sustainable Development in the Context of Climate Change
3 Sustainable Development as Reflected in the International Climate Change Regime
3.1 References in the UNFCCC
3.2 Kyoto Protocol and Subsequent Documents
3.3 Indirect References
3.3.1 Intergenerational Dimension
3.3.2 Differentiation and Intragenerational Equity
3.3.3 North–South Partnership
3.3.4 Funding and Financial Obligations
3.3.5 Economic Flexibility
4 Concluding Remarks

Chapter 6.3 Balancing Exploitation and Protection of the Dutch North Sea; The Dutch Struggle with the Need For Wind Energy at Sea and a Legal Framework for the Protection of the Marine Environment
Kars de Graaf
1 Introduction to the Dilemma
2 Legal Aspects of Wind Energy in the North Sea
2.1 The North Sea and International Marine Protection
2.2 The Dutch Legal Framework
3 Does Dutch Policy on Wind Farms at Sea Make up for the Inadequate Legal Framework?
3.1 Policy for the Granting of Licences
3.2 National Policy on the North Sea
4 When does the Struggle End?