IUCN/UNEP/APCEL Environmental Law at University Level

"GO GREEN, OR GO UNDER":   TRANSLATING SUSTAINABILITY PRINCIPLES INTO DOMESTIC LAW

Ben Boer; paper delivered to the Defending the Environment Conference, Australian Centre for Environmental Law Adelaide 1996.

Public Interest

 Introduction The application of the concept of sustainable development through legal and policy mechanisms continues to be discussed and refined at international and domestic level. Whilst the report. Our Common Future[1] the Rio Declaration on Environment and Development provide vital indications of its scope and meaning, it is unlikely that there will be one particular definition or set of principles which will suffice for all situations. The principles and concepts of sustainable development will always need to be shaped in response to particular legal, political, economic, and cultural circumstances.  One point that is more certain however is that there should be no law relating to sustainable development that is distinct from the general body of environmental law as it has emerged in many countries over the pa?? lew decades. The challenge for international and domestic environmental lawyers is to make that theory a reality, not only in terms of the precise provisions of treaties and nationally-based statutes, but more impc tantly, in their'practical application through legislative regimes and'codes of practice.[2]

This task has become a focus for a number of United Nations organisations, especially the Commission on Sustainable Development, the United Nations Environment Programme and the United Nations Development Programme. In addition, the various international financial organisations, such as the World Bank and its components, and the Asian Development Bank, have become involved in promoting sustainability strategies through projects which have major legal component. Many governments around the world have also taken the task of putting legislation and policy into place which promotes sustainable development through preambles and statements of objects. However, the reality is that while many countries may develop the capacity to promote sustainable development, and many will enact or legislation in attempts to put it into practice, its actual achievement will continue to be dependent on the political will of individual governments.

Thus integral to the task of capacity-building and legislative enactment is -that of- . education, not only in schools and in the community, but at the highest levels of political and government decision making, to build a "culture of sustainability". With regard to both the public and the private sector, the activities of government and commerce must become "ecologised". The fundamental justification for promotion of ecologisation is ' ethical, both in terms of intrinsic environmental values as well as in terms of intra and intergenerational human survival. Part of this is the need to generate a suitable set of ethical principles which will form the basis for an environmental law which promotes sustainability, at an international, national, and local or community level.

Apart from the generation of ethical principles as such, there are also very good practical reasons for commerce and industry, as well as governments and the political parties on which they are based, to radically change their present practices, in short, to "go green".  In order to survive in the longer term, the natural environment ("resources") on which much of the private sector depends must be properly conserved for both present and future generations. With increasing emphasis on national and State legislative programs which promote ecologically sustainable development, consumers of goods and services, as well as supporters of political parties have begun to expect corporations and governments to act in the interests of the present and future community with regard to the world's common environmental inheritance.

From an industry viewpoint, a further reason to "go green" is the exponential growth of the market in green technology, with the Asia-Pacific market for environmental goods and services being worth many billions of dollars over the next few years.[3]

 In the international sphere, being seen as going green is 'clearly a diplomatic plus, as seen for example by Australia's involvement in the development of the Madrid Protocol on a minerals regime for Antarctica in 1991 and its close involvement in promotion of the Comprehensive Test Ban Treaty in the United Nations in 1996.

Consumer-driven environmental requirements are likely to be a powerful co-generator of the practice of sustainability. Thus both corporate entities and government must embrace a "culture of sustainability;" they must "go green or go under".

Internationally, and particularly for island states and low-lying fcoastal areas, in the context of global climate change and the rise of sea-levels, the meaning of "going under" has a directly physical meaning, as illustrated by the following statement from the Prime Minister of Tuvalu, an atoll country:

Now it is up to the decision makers of the world, particularly 'those of the leading industrialized nations, to respond with decisiveness and conviction. We know from all the scientific evidence collected to date that the fragile and delicate atmosphere balance on which life and our existence depends has been upset. The threat to the atmosphere comes predominantly from the breath of industrialized civilization. We in the island nations cannot afford to wait for more studies and research. We would like to have firm and pragmatic solutions to curb the negative impact of climatic changes on our lives. We live on these small and fragile islands and we know that the problems are now and not tomorrow. The time to act is now or never[4]

A move to a culture of sustainability involves major paradigms shifts at every level of society, beginning with individuals, and including industry, government, educational institutions, and our global and regional institutions. We must focus on the issue of what we need to ensure that human societies and other ecosystems become or remain sustainable. It involves a search, for the development of concepts which integrate cover ecological, social and economic concerns and the generation of environmental law which promotes sustainability at an international, national, and local community level, and thus contributes to the political and social transformations required. The laws of human beings need to conform with the carrying capacity of particular environments as well as the carrying capacity of the earth as a whole.  The World Conservation Union, in its Strategies for National Sustainable Development, states the following:

Sustainable development means improving and maintaining the well-being of the people and ecosystems. This goal is far from being achieved. It entails integrating economic, social and environmental objectives, and making choices among them where integration is not possible. People need to improve their relationships with each other and with the ecosystems that support them, by changing or strengthening their values, technologies and institutions.[5]

Imagining the future

The best way to predict the future is to invent it. [6]

The ability to imagine the future, and then to build structures, mental and physical, to achieve it,  has been developed and practiced by humans for millennia, as a basic skill for survival. It is an ability we need to regain for the good of humanity and the ecosystem of which humanity is part.

In order to put policies and legislation into place now, we need to'imagine how we want the world to be and to choose a timeframe for action which is realistic, in terms of present day politics and economics, to achieve practical results. However, our eye should be on the indefinite future.    This is also called creating a "vision of the whole": a vision of an ecological society, in the achievement of which the law is one component, along with a range of other strategies.

In imagining the future, some fundamental ethical problems confronts us: how do we determine what the needs of future generations might be, and how many future generations should we take into account? What assumptions should we make, and on the basis for which principles? If we act on the needs of future generations which we purport to identify, what effect do the decisions have on those that come before them, including the present generation? And finally, how do we answer the conundrum that the decisions we make now for the supposed benefit of future generations may well affect the very fact of existence of some elements of future generations of human beings and their environment?

Having decided as best we can what principles are to be used, we then need to attempt to translate those principles into a form which can guide decision makers and legislators, and which will become the basis for both legislation and administrative policy to govern both corporate and individual behaviour.

Principles of sustainability

Principles of sustainability have been developed over the past few years, and set out in various international and national instruments.  Internationally, several of them appear, directly or indirectly, in the 27 principles of the Rio Declaration on Environment and Development. The United Nations General Assembly in 1992 recommended that the Commission on Sustainable Development (CSD) shall " promote the incorporation of the principles of the Rio Declaration in the implementation of Agenda 21,[7]and in 1994[8] requested the Secretary-General to ensure that its principles are incorporated in the programs and processes of the competent bodies and organs of the United Nations system. Recent environmental conventions have also incorporated various of the Rio principles into their provisions.

The identification of principles and concepts for sustainable development have also been the subject of recent conferences and papers.  One of the more significant of these is the Report of the Expert Group Meeting on Identification of Principles of International Law for Sustainable Development[9]    That Report identifies 17 principles and concepts, many of which are consistent with the Rio Declaration:

1       Principle of interrelationship and integration

2.     Right to development

3.     Right to a healthy environment

`       4.     Eradication of poverty

         5.       Equity

6.       Sovereignty over natural resources and responsibility not to cause damage to the environment of other States or to areas beyond national jurisdiction      

         7.       Sustainable use of natural resources

         8.       Prevention of environmental harm

         9        Precautionary principle

         10      Duty to cooperate in the spirit of global partnership

         11      Common heritage of humankind

         12      Cooperation in a transboudnary context

         13      Public participation   

         14      Access to information

         15      Environmental impact assessment and informed decision-making

16      Peaceful settlement of disputes in the field of environment and development

17      Equal, expanded and effective access to judicial and administrative proceedings

18      National implementation of international commitments

19      Monitoring of compliance with international commitments.

Whilst many of these principles and concepts are interrelated, some of them are, at least at first sight, also contradictory. It is the first principle, of interrelationship and integration, which may provide the key to resolution of the conflicts between the principles.

The “Expert Group made a series of recommendations to the commission on Sustamable Development, emphasising the importance of taking an integrated approach to the development of international law relating to sustainable development, including the formulation of new treaties related to' any aspect of sustainable development.   It also recommended the convening of an ad hoc Advisory Group of Legal Experts to study and further identify the elements and practical consequences of these principles as they evolve. A Monitoring Network was also recommended.[10]

 In 1997, the Rio principles and the implementation of Agenda 21 will be comprehensively reviewed by a Special Session of the United Nations General Assembly.[11] Another important development in 1996 was the initiative of the Dutch government to promote the codification of the principles of the Rio Declaration in national law.[12] The objectives of the conference were:

To exchange and learn from national experiences which participating countries have with incorporation of general principles of environmental law into their national legislation, and

To identify possible ways of facilitating and improving@onditions for national incorporation through the international framework.[13]

        .

In the chair's conclusions of the conference, contributed to by a wide range of participants, the following statement was made:

Rio principles should be incorporated so as to be given the highest possible status at each level (national, provincial, regional, local), in such a way that makes them, to the extent possible, justiciable i.e. capable of judicial supervision. This will give guidance to policy makers administrators, judiciary, local communities and the citizens.[14]

In Australia some of the Rio principles are beginning to be recognised. They include intergenerational equity (and consequently intragenerational equity), the precautionary principle, biodiversity conservation and ecological integrity.    These have been incorporated into a number of pieces of Australian legislation, perhaps most obviously through the uniform National Environmental Protection Acts adopted by the Commonwealth and the States, all of which incorporate 1992 Intergovernmental Agreement on the Environment in a schedule. The Agreement endorses the principles identified earlier in the paragraph.[15]

Below, the principle of interrelationship and integration is briefly canvassed as a fundamental principle which is intended to tie all the rest together.

The principle of interrelationship and integration The principle of integration is considered by the Experts Group (see above) to be the "underlying theme" of the Rio Declaration and Agenda 21.    It relates to the integration of environment and development, as well as the needs of present and future generations (Principles 3 and 4). Further, Principle 25 holds that peace, order and environmental protection are interdependent and indivisible. The integration of environmental concerns and economic aspirations are also the theme of chapter 8 of Agenda 27. The Report states:

Interrelationship and integration reflect the interdependence of social, economic, environmental and human rights aspects of life that define sustainable development, and could lead to the development of general rules of  international law in which these separate fields retain their distinct characters but are subject to an interconnected approach.[16]

Integration also implies recognition of the connection between international and national environmental law. underlining the truism that international conventions are of little use unless they are implemented by individual countries, often acting in concert either globally or regionally.

This principle thus has very broad application, and is being incorporated into a range of modem environmental treaties and declarations.  In the present context, the fundamental point is all development planning and activity must be considered within the carrying capacity, insofar as that can be ascertained, of the ecosystem and social system for which it is proposed.

However, the question is whether adoption of this and other sustainability principles will actually make sufficient difference for present and immediately future generations. According to all relevant indicators, such as emission of greenhouse gasses, deforestation, biodiversity depletion, desertification processes, rate of development, soil degradation, soil contamination, air and water pollution, improvements are slow and sporadic, and continue to be limited for the most part to the developed (one might say overdeveloped) countries. To date, progress on linking global and regional trade agreements to environmental performance has also been complex and controversial.[17] Several examples are now canvassed.

Greenhouse gases and climate change

An obvious area where a change of thinking is required is Australia's policy on greenhouse gas emissions. Clear domestic targets for greenhouse gas reductions are required, without necessarily waiting for the international community to set them. It is not enough to argue that while our per capita emissions are among the highest in the world, that we can be excused because the overall emissions are much lower than more populous countries.

Further, as coal is one of our largest exports, we should also be concerned about the effect that burning our coal has on other countries. The global ecosystem suffers whether our coal burns in Guanghou in China or in the Hunter Valley, Australia. In other words, if we profit by the massive sale of coal to China, we should also be held accountable for the carbon that the atmosphere has to absorb as a result of that export and profit.   This is perhaps a more radical interpretation of Principle 2 of the Rio Declaration, [18] but it seems to me a sensible one, if Australia is to' fulfill its global responsibilities in relation to greenhouse gas emissions. In relation to our own direct emissions, we should strive to lead the way, rather than taking an essentially developing country position, to our international embarrassment at the Berlin Conference of the Parties in 1995 as well as at the 1996 South Pacific Forum, where our Prime Minister was forced to bend to the position of South Pacific island countries in relation to greenhouse matters.

Over-production and consumption of energy and natural resource-intensive goods and services

There seems to be little discouragement in any country of reducing demand for products which have very significant environmental impacts, both in terms of the natural resources and energy consumed in their manufacture, as well as in terms of the energy consumed during the life of the product; for example, electrical appliances of every kind, and of course the motor car.

While Germany and a number of other countries have instituted arrangements to ensure longer life of consumer products, re-use, recycling etc, there is a little global thinking and action on these issues.

The Green Gold[19] argument on the deployment of environmental technology to achieve greater industrial competitiveness while reducing drastically the wastage and pollution of "traditional" industrial activity and the process of ecologising of commerce[20] need to be promoted globally through international agreements and other arrangements.

Transport

A related area is that of transport. We should ask whether there is any possibility of bilateral and multilateral agreements being concluded aimed at reducing transport of goods between countries; this would need to be done by closely examining the products traded, and agreeing on those products that can be produced at the same level of quality within each particular country, and then agreeing not to trade in those items, thus vastly reducing, over a period of years, the need for transport for those products. Conversely, the same applies in relation to products that can be much more efficiently and cleanly produced in one country than another. One country would need to agree on not producing those products, and agree to buy them from the other country, and vice versa. This happens informally already through the normal operation of the

market, but it is a question of planning an agreement to ensure that it happens consistently and across the board.    There are hundreds of products to which this applies, from essential products and services to luxury consumer items. If the sums were done, it may well turn out that the overall cost of production may in fact be less for a variety-of products (depending, for example, on cost of raw 'materials and labour).   The difficulties, legal, economic and political, that such thinking would cause in relation to "free" trade matters is of course recognised. What is argued is that such thinking should become part of normal trade agreements on a regional basis.

Clearly, such strategies would not have popular appeal with many governments, and may terrify some, but they may assume crucial importance in the future.

National Environmental Plan

Whilst Australia has made some progress in taking a national approach to environmental issues, such as the 1992 National Strategy for Ecologically Sustainable Development (the NSESD), the 1992 Intergovernmental Agreement on the Environment and the legislation at Commonwealth and State levels establishing the National Environment Protection Council, these are still piecemeal initiatives which do not take a holistic approach. To achieve a "culture of sustainability" we need a comprehensive National Environment Plan, backed by legislative and administrative arrangements which are capable of putting this plan into action.    Unlike the Intergovernmental Agreement on the Environment, the National Environmental Plan should be negotiated using an open participatory process involving a wide range of stakeholders, both from within and outside government. Arrangements for putting such a plan into place would also need to be carefully thought about, in terms of constitutional and political arrangements.

Australia has in the past made an attempt to put a limited conservation plan into place before: the National Conservation Strategy for Australia, in 1983. The Strategy was good on rhetoric, but very weak on implementation. It had no hard requirements for national legislative action, and was not taken up with the kind of spirit that other countries have been able to summon for their national conservation strategies and plans.   It was of course a springboard for a range of initiatives and studies, the NSESD being one of them.

The ideas within it, together with those of later documents could however be revisited, with a view_to putting together a much more ambitious and-.far-sighted plan, which takes into account the developments internationally, through'the Rio Conference and in particular, the substantial obligations that Australia has taken on as result of its ratification of a number of international conventions.

The Netherlands National Environmental Plan No 2 is a useful stalling point for discussion of such an Australian National Plan.[21] However, regard also needs to be had to the experience of countries such as Canada, which attempted to put a Green Plan into place federally in the early 1990s, and the far-sighted but relatively short-lived initiative by British Columbia to develop a Strategy for Sustainability[22] and an associated Sustainability Act in the mid 1990s, through the now abolished Commission on Resources and Environment.

What Australia could do                         

The following is a suggested checklist of actions that could be taken to achieve Sustainability, and to "go green" across the nation.

1.       Establish a broadly based ESD body, including representatives from the Commonwealth,
States and Territories, NGOs, public and private sector

2.Promote a national environmental planning policy process, involving Commonwealth, States, Territories and Local Government

3 Draw up a Twenty-year National Environmental Plan, with staged implementation

4.Promote the National EIA standardisation process

5. Standardise all pollution control regulation as far as possible

6. Conclude a binding National Forest Agreement

7. Agree on a National Population Policy

8 Review all Commonwealth, State and Territory environmental and natural resource allocation legislation to:

@ ensure conformity with international obligations eg on Climate

Change, Biodiversity, Forests, Desertification

@ import principles of Sustainability

@ promote environmental auditing

@ require resource lifecycle management

@ set up bio-regional environmental management systems

@ introduce long-term planning mechanisms for all resource sectors

@ require energy conservation in all sectors: industry, transport, residential.

We have the research data to provide the basis for such a plan: the State of the Environment Reporting Process, both terrestrial and marine,[23] the vast materials made available through the Environmental Research Information Network, available on the Internet, the work of the Australian Bureau of Statistics Australians and the Environment[24] the work of the Australian Bureau of Agricultural Economics, to name a few. We have the experts within the federal and State environment and natural resource agencies, we have the non-government organisations which are keen to be involved, and we have the academic institutions which continue to provide both the fundamental and applied research necessary for the generation and implementation of such a plan.

Conclusion

There is a clear need to go far beyond the statement of sustainability principles as presently formulated, and to understand that the words must be transformed into actions at every level.     We must to set out as clearly as possible, through international conventions and through a National Environmental Plan (which might eventually be expressed in legal instruments), the way in which we should interact with both each other and the natural environment.

Without adequate consideration for the environmental and human generations of the years to come, humanity as a whole as well as our environment will have no chance to beat those processes of extinction which are quickened by unthinking human action.[25] We will indeed become the "Future Eaters"[26].