Right to Development: Conspiracy in International Law? II

Published on 24th August 2009

By Upendra D. Acharya

Assistant Professor of Law, Gonzaga University School of Law; LL.B. Nepal Law Campus; M.C.L.University of Delhi, College of Law; LL.M. University of Utah, College of Law; S.J.D. University of Wisconsin Madison Law School.

Global Environment without Development

Just as the trade regime of the WTO has included the concept of sustainable development in its agenda, the multilateral environmental agreements (MEA) also have inserted the concept of sustainable development into their treaty regimes. The first historic MEA, Stockholm Conference,18 focused not on the concept of development but rather on core agenda of environmental protection at the international level.19 The concept was defined in the work of the World Commission on the Environment and Development.20 Later in 1992, during the United Nations Conference on Environment and Development (UNCED),21 sustainable development was heavily discussed and put on the agenda in order to provide a fresh start to examining the concept.22

In formulating the concept, the developed countries were more concerned about protection of the environment and the developing countries were more concerned about development. As a result of negotiations and the resulting bargain struck between the two worlds, the Rio Declaration produced Twenty-Seven Principles with environmental protection priority over development.23 The Declaration also addressed the concept of development by inserting the principle of intra- and inter-generational equity stating.24 The Declaration outlined the central concerns raised in recognizing an environmental-development nexus, such as health and integrity of the Earth’s ecosystem;25 common but differentiated responsibilities according to the level of contributions to global environmental degradation;26 special priority to the needs of the developing countries, particularly the least developed and those most environmentally vulnerable;27 healthy and productive lifestyles in harmony with nature;28 reduction of unsustainable patterns of production and consumption;29 the precautionary principle;30 the polluter pays principle;31 environmental impact assessment as a national instrument for development activities,32 and a notification and consultation process among affected nations in the event of disasters and emergencies that are likely to produce harmful environment effects.33

However, the Declaration did not go on to detail how the right to development would be achieved. Principle three states only “…equitably meet developmental and environmental needs of present and future generations.”34 Whose generation needs are to be met-those of the developed countries or those of the least developed countries? How are underdeveloped countries to be assessed to see whether their developmental and environmental needs for the present generation have been met? The answer is nebulous.

The right to development has been diluted within the mixed concept of environment and development -sustainable development - and the developed world can, at its discretion, decide when and what priority should be given to which element of the sustainable development amalgam-either the environment or development.

The concept of sustainable development is furthered by the 500 page Agenda 21.35 This action plan basically lays out the method to effectuate the concept of sustainable development outlining issues regarding social and economic factors,36 conservation and resource management,37 public participation from different stakeholders,38 and implementation.39 The Commission on Sustainable Development (CSD)40 is created to “advance global dialogue and foster partnerships for sustainable development”41 – sounds unimpeachable, but mainly because of the political tension between the developed and underdeveloped world, the meaning of sustainable development is in fact controversial. The developed countries apply the concept to promote a sustainable environment and the developing world applies the concept to promote development. For this reason, the concept of development has been claimed as a contestable concept.42

The whole idea of sustainable development has benefited the developed world in two ways. One, the ultimate economic benefit of natural resources can be locked in for the long run in the name of sustainable development and inter-generational equity. Two, the present generation of the developed world is now aware that if the environment is not protected, they will lose their quality of life. Therefore, the concept of sustainable development makes a state’s management of its own domestic environment and resources a matter of international concern.43

The idea of the right to development has been diminished by the concept of sustainable development. Under such conditions, sustainable development can be viewed not as development but as a tool sustaining the lifestyles of those who already enjoy every material advantage, while maintaining on life support those living on a dollar a day who do not have even basic needs. If sustainable development inspires such a result, it will eliminate the concept of development and sustainable development as well.

Even the Millennium Development Goals (MDGs), a blueprint for building a better world in the 21st century,44 transformed into an agenda for sustainable development.45 Jumping sustainable development bandwagon, the World Summit on Sustainable Development46 also annexed the MDGs to its agenda. As with previous efforts, this time also the path of sustainable development was widely endorsed, without consideration of the previous route laid down by the right to development.

The 2002 World Summit on Sustainable Development in Johannesburg, South Africa focused on five priority areas: water and sanitation, energy, health, agriculture, and biodiversity and ecosystem management (known as the WEHAB agenda) and the Johannesburg Plan of Implementation.47 Once again, it was another great success for those who like to avoid the idea of an independent right to development by championing the idea of sustainable development.48 During the ten years from Rio to Johannesburg, environmental conditions worsened, poverty deepened and implementation of sustainable development was disappointing.49

To be continued.

Footnotes

18 The Stockholm Conference on the Human Environment was held at Stockholm, Sweden from June 5 to 16, and a declaration was produced: the Stockholm Declaration on the Human Environment of the United Nations Conference on the Human Environment, 16 June 1972, 11 I.L.M. 1416 (1972). In addition to producing the declaration, the conference also created the Stockholm Action Plan and the United Nations Environment Program and the related environment fund.

19 Principles 1 and 21 of the Declaration focus more on safeguarding environmental quality to provide dignity of human life for present and future generations (the right to a healthy environment) and the sovereign right of a country to exploit its own natural resources as customary international law.

20 World Commission on Environment and Development, Environmental Protection and Sustainable Development: Legal Principles and Recommendations (1987), also known as the Brundtland Report or Our Common Future. 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”.

21 The United Nations Conference on Environment and Development, also known as the Rio Summit or Earth Summit, was held in 1992 in Rio de Janeiro, according to the mandate of the General Assembly resolution, U.N. Doc. A/RES/44/228 (1990). This Conference produced two treaties-the Framework Convention on Climate Change and the Convention on Biological Diversity-- as well as the One Forest Principles (non-binding), “Statement of Principles for the Sustainable Management of Forests”, the Rio Declaration, and Agenda 21 (Plan of Implementation).

22 Ved P. Nanda, Supra, note 27 at 53.
23 Rio Declaration, Principle 2 (known as “no harm approach”)
24 Id. Principle 3
25 Id. Principle 7
26 Id.
27 Id. Principle 6
28 Id. Principle 1
29 Id. Principle 8
30 Id. Principle 15
31 Id. Principle 16
32 Id. Principle 17
33 Id. Principles 18 and 19
34 Supra, Note 43
35 Agenda 21 is one of the creations of the Rio Summit. Agenda 21 is available at
http://www.un.org/esa/sustdev/documents/agenda21/english/agenda21toc.htm
36 Agenda 21, Section I
37 Id. Section II
38 Id. Section III
39 Id Section IV
40 Report of the United Nations Conference on Environment and Development, G.A. Res. 190, U.N. GOAR, 47th Session, 93rd Plen. Mtg., U.N. Doc. A/RS/47/190 (1992).
41 Program for the Further Implementation of Agenda 21, G.A. Res. 2, U.N. GOAR, 19th Special Session, Annex 1, Agenda Item 8, Para. 16, U.N. Doc. A/RES/S/-19/2 (1997). The CSD reviews the progress of the implementation of recommendations and commitments made in UNCED; provides policy guidance and options for activities to implement Agenda 21; promotes dialogues and builds partnerships among nations; and includes different interest groups such as Women, non-governmental organizations (NGOs), indigenous peoples, businesses, farmers, scientists, and local authorities.

42 See, Andrew Dobson, Fairness and Futurity, 23-30 (1999). The author discusses six core ideas that the term sustainable development embraces: environmental-economic integration, futurity, environmental protection, equity, quality of life, and participation.

43 Alan Boyle and David Freestone, International Law and Sustainable Development: Past Achievements and Future Challenges, 6-7 (1999). The authors even claim that the concept of development has almost achieved an erga omnes status.

44 UN Millennium Summit was held in September 6-8, 2000, as mandated by General Assembly Resolution A/RES/54/281 and adopted the Millennium Declaration. The Millennium Development Goals (MDGs) comprise eight goals that are to be achieved by 2015, which are: eradication of poverty and hunger, achievement of universal primary education, promote gender equality and empower women, reduce child mortality, improve maternal health, combat HIV/AIDS, malaria and other diseases, ensure environmental sustainability, and develop a global partnership for development. See,
http://www.undp.org/mdg/basics.shtml

45 Kofi A. Annan, Secretary General, Foreword, 2005 Assessment of the Millennium Development Goals.

46 World Summit on Sustainable Development (Rio’ Earth Summit +10) Johannesburg, South Africa, August 26 to September 4, 2002, also known as the Johannesburg Summit. This Summit produced a Report of the World Summit on Sustainable Development, A/CONF/199/20. The report adopted Political Declaration and Plan of Implementation. This is not a set of principles but a broader political approach to sustainable development.

47 The Plan of Action, totaling 11 chapters, addresses various issues, among which are poverty eradication, unsustainable patterns of consumption and production, sustainable development for Africa, globalizing world and small island states, means of plan implementation, and an institutional framework. See,
http://daccessdds.un.org/doc/UNDOC/GEN/N02/636/93/PDF/N0263693.pdf?OpenElement
48 See, Michael G. Scheter, UN-Sponsored World Conferences in the 1990s, in United Nations-Sponsored World Conferences: Focus on Impact and Follow-Up, 3-7 (Michael G. Sechecter ed., 2001).
49 Ved P, Nanda, Supra Note 27 at 62.



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