International Courts and the Application of the Concept of "Sustainable Development"

in Max Planck Yearbook of United Nations Law Online
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International Courts and the Application of the Concept of "Sustainable Development"

in Max Planck Yearbook of United Nations Law Online


1 See Foundation for International Environmental Law and Development, "Report of the Consultation on Sustainable Development: the Challenge to International Law", Review of European Community and International Environmental Law 3 (1994), 1 et seq. 2 See P. Sands, "International Law in the Field of Sustainable Development", BYIL LXV (1994), 303 et seq., (379) (emphasis added).

3 ICJ Reports 1997, 7 et seq. The Court had previously referred to Principle 24 of the Rio Declaration on Environment and Development in its Advi- sory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1CJ Reports 1996, 226 et seq., (242).

4 Ibid., 78 (para. 140) (emphasis added).

5 See e.g. Slovakia: "It is clear from both the letter and the spirit of these principles that the overarching policy of the international community is that environmental concerns are not directed to frustrate efforts to achieve social and economic development, but that development should proceed in a way that is environmentally sustainable. Slovakia submits that these have been, and are today, the very policies on which the G/N Project is based." (Counter-Memorial, para. 9.56). In reply, Hungary takes the opposite view to support its argument that the G/N Project is unlawful: "Well-established ... operational concepts like "sustainable development" ... help define, in particular cases, the basis upon which to assess the legality of actions such as the unilateral diversion of the Danube by Czechoslovakia and its con- tinuation by Slovakia." (Hungarian Reply, para. 3.51).

6 Or, as two other authors have put it: "What is perhaps more remarkable, however, is that the Court, despite its endorsement of a treaty regime that smacked of unsustainability, went on to invoke sustainable development in order to miraculously salvage something from a sinking ship": S. Stec and G. Eckstein, "Of Solemn Oaths and Obligations: Environmental Impact of the 1CJ's Decision in the Case Concerning the Gabcikovo-Nagymaros Project" , Yearbook of International Environmental Law 8 (1997), 41 et seq., (47). 7 "Equally, the Court cannot ignore the fact that, not only has Nagymaros not been built, but that, with the effective discarding by both parties of peak power operation, there is no longer any point in building it", 1CJ Re- ports 1997, 7 et seq., (76 para. 134). 8 Ibid., 90.

9 Ibid. 10 Ibid., 92. 11 Ibid., 93. 12 Ibid., 95. 13 Ibid. 14 Ibid. 15 Ibid. 16 Ibid., 98. 17 Ibid., 110, 111.

18 AB-1998-4, 12 October 1998; ILM 33 (1999), 118 et seq.

19 See in this respect also under IV., 14 the article of A. Ziegler in this Volume. 20 WT-DS58/R of 15 May 1998.

21 See note 18, para. 114. 22 Ibid., paras. 131 and 134. 23 Ibid., para. 129. 24 Ibid.

25 Ibid., para 129, at note 107 and accompanying text. The Preamble to the WTO Agreements provides inter alia that "the Parties to this Agreement, recognising that their relations in the field of trade and economic endeav- our should be conducted with a view to raising standards of living, ensur- ing full employment and a large and steadily growing volume of real in- come and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world's re- sources in accordance with the objective of sustainable development, seek- ing both to protect and preserve the environment and to enhance the means of doing so in a manner consistent with their respective needs and concerns at different levels of economic development ...". 26 Ibid., para. 130, citing article 56 para. 1 lit.(a) of the 1982 UNCLOS. 27 Ibid., paras. 132 and 133. z8 Ibid., para. 133.

29 Sustainable development is not invoked or referred to justify the conclu- sion that Section 609 constitutes an "arbitrary discrimination". 3� Ibid., para. 153.

31 Ibid., para. 154. See further in this respect the article by R. Tarasofsky in this Volume. 32 Principle 3 of the Rio Declaration provides that "the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations''. Principle 4 states "In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process, and cannot be considered in isolation from it". 33 Ibid., para. 164. 34 Ibid., para. 165.

3s Ibid., para. 166. 36 Ibid., para. 167. � Ibid. 38 Ibid., para. 168. 39 Ibid., para. 170. The 1996 Convention establishes obligations to reduce harm to sea turtles and encourages the appropriate use of TEDs (article IV para.2 lit.(h)). It also provides expressly that in implementing the Conven- tion the parties shall act in accordance with the WTO Agreement, includ- ing in particular the Agreement on Technical Barriers to Trade and Article XI of GATT 1994 (article XV).

40 Ibid., para. 171 and note 174 (and accompanying text).

at See more generally P. Sands, "Treaty, Custom and the Cross-Fertilisation of International Law", Yale Hum.Rts.Dev.L.J. 3 (1998), 1 et seq., http://diana.�-article.htm. a2 See also A. E. Boyle, "The Gabeikovo-Nagymaros Case: New Law in Old Bottles", Yearbook of International Environmental Law 8 (1997), 13 et seq. (18), noting that the International Court's treatment of "sustainable devel- opment'' left open two very large questions, namely whether the Court could review development proposals on the ground that they were not sustainable, and whether the principle had an erga omnes character.

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