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Defining Sustainable Development After Earth Summit 2002

Defining Sustainable Development After Earth Summit 2002

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Defining Sustainable Development afterEarth Summit 2002
H
ARI
M.
 
O
SOFSKY
*
 I.
 
I
NTRODUCTION
 In August 2002, over 22,000 people met in Johannesburg,South Africa to attempt progress on a vast cluster of issues that theinternational community terms “sustainable development.”
1
Manyparticipants left bitterly disappointed, with several non-governmental organizations (NGOs) detailing issue by issue howEarth Summit 2002 (Summit) had failed.
2
 In February 2003, much fewer people gathered at Loyola LawSchool in Los Angeles, California to discuss the status of sustainable development in the aftermath of the Summit. Thepresentations ranged from project finance to environmentaljustice, each focusing on particular topics within the vast umbrellaof sustainable development. At its conclusion, no one expressedbitter disappointment.Despite having chaired this panel, however, I left it still notquite sure precisely what sustainable development is and where it
*
Assistant Professor and Director of the Center for International and ComparativeLaw, Whittier Law School. I would like to thank Günther Handl, Donna Weiss, andTseming Yang for their excellent presentations as part of the Sustainable Developmentafter Earth Summit 2002 panel that inspired this piece. I also very much appreciate theassistance of the International Law Weekend West Organizing Committee, particularlyWilliam Aceves, Greg Fox, and Larry Helfer, in developing the panel.
 
1
.
U
NITED
N
ATIONS
D
EP
T OF
E
CON
.
 
&
 
S
OC
.
 
A
FFAIRS
,
 
U
NITED
N
ATIONS
,
 
S
USTAINABLE
D
EVELOPMENT
D
IVISION
,
 
T
HE
R
OAD
F
ROM
J
OHANNESBURG
:
 
W
ORLD
S
UMMIT ON
S
USTAINABLE
D
EVELOPMENT
:
 
W
HAT
W
AS
A
CHIEVED AND
T
HE
W
AY
F
ORWARD
(Jan.
 
2003),
 
http://www.un.org/esa/sustdev/media/Brochure.PDF [hereinafterThe Road from Johannesburg].2
. E.g.
, Greenpeace,
Earth Summit 2002 Report Card
,
at 
http://archive.greenpeace.org/earthsummit/report_card (Greenpeace’s evaluation of EarthSummit 2002).
 
91
 
 
92
Loy. L.A. Int’l & Comp. L. Rev.
[Vol. 26:91
stands. I am not alone in this sense of uncertainty.
3
The literatureon sustainable development agrees consistently on one centralpoint: notwithstanding increasing international recognition of sustainable development as part of customary international law, nounitary and detailed definition exists for this term. In fact, somescholars even go so far as to explain why this lack of definition isnot problematic.
4
 In assessing the progress—or lack thereof—made at theSummit, an analysis of the definitional issues is crucial. Theinternational community’s choice to define sustainabledevelopment ambiguously, combined with a structural mismatchbetween the relevant actors and the decision-making process of the international community, limited the “success” possible at theSummit. Many of the disagreements and criticisms with respect toindividual issues stem from fundamental, conceptual, andstructural struggles with sustainable development as currentlyconceived.This Article explores these foundational issues and assessesthe road ahead from Johannesburg in light of them. Part IIdiscusses the morass of conceptual and political problems thatserve as barriers to a consensus definition. Part III considers thestructural barriers to achieving sustainable development, howeverit is defined. The Article concludes in Part IV by evaluating thelimited conceptual and practical progress made at the Summit, andits implications for further steps.II.
 
B
ARRIERS TO
D
EFINITION
 The primary problem with—or from a politician’sperspective—the strength of the concept of sustainabledevelopment is that no one knows precisely what it means, evensixteen years after its popularization by the Brundtland Report.
5
 
3
. See, e.g.
, Hans Christian Bugge & Lawrence Watters,
A Perspective on SustainableDevelopment After Johannesburg on the Fifteenth Anniversary of Our Common Future: AnInterview with Gro Harlem Brundtland,
15 G
EO
.
 
I
NT
L
E
NVTL
.
 
L.
 
R
EV
. 359, 360 (2003).(Interview) (“While the precise contours of sustainable development are not reflected inany one formulation, the concept continues to evolve in order to encompass the objectivesof the international community.”).4.
See
Michael Jacobs,
Sustainable Development as a Contested Concept, in
A
NDREW
D
OBSON
,
 
F
AIRNESS AND
F
UTURITY
:
 
E
SSAYS ON
E
NVIRONMENTAL
S
USTAINABILITY AND
S
OCIAL
J
USTICE
21, 37 (Andrew Dobson ed., 1999).5. W
ORLD
C
OMM
N
O
N
E
NVIRONMENT
& D
EVELOPMENT
,
O
UR
C
OMMON
F
UTURE
(1989) [hereinafter The Brundtland Report]. The Brundtland Report represents
 
 
2003]
Defining Sustainable Development 
93
The ambiguity stems partly from the multiplicity of definitions of sustainable development, not only in the debates of commentators,but also in the international agreements themselves.
6
Scholars,activists, and politicians expressed at least twenty-five definitionsof sustainable development between 1979 and 1988.
7
Thetransformation in the definition from the Brundtland Report tolast year’s Johannesburg Declaration on Sustainable Developmentis significant.
8
 
the first time the term “sustainable development” was used in an international legaldocument. The broad concept expressed in the Brundtland Report is, however, older thanmany of the countries currently participating in the dialogue over how to achieve it. Thenotion of balancing between the needs of the current generation and those to come—oneof the leading definitions of sustainable development—had already been articulated overthe course of hundreds of years by indigenous cultures and more recently byenvironmentalists and scholars.
See generally
S.
 
J
AMES
A
NAYA
,
 
I
NDIGENOUS
P
EOPLES IN
I
NTERNATIONAL
L
AW
104-07 (1996) (discussing connections between indigenous cultureand religion and the land that indigenous peoples inhabit). The Brundtland Report’ssignificance was not in the novelty of its ideas, but in its bringing this concept into therealm of international law and policy.6. A multiplicity of international agreements, as well as the speeches and articlesthat discuss them, mention sustainable development as a crucial goal.
See, e.g.
,
RioDeclaration on Environment and Development 
, Princs. 1, 4, 5, 8, 9, 21, 22, 24 & 27,
in
 R
EPORT OF THE
U
NITED
N
ATIONS
C
ONFERENCE ON
E
NVIRONMENT AND
D
EVELOPMENT
, U.N. Doc. A/CONF.151/26, U.N. Sales No. E.93.I.8, at 8-9,
reprinted in
 31 I.L.M. 874, 876, 877, 880 (1992) [hereinafter Rio Declaration]; Convention onEnvironmental Impact Assessment in a Transboundary Context,
done on
Feb. 25, 1991,pmbl., 1989 U.N.T.S. 309, 310,
reprinted in
30 I.L.M. 800, 802; Protocol to the 1979Convention on Long-range Transboundary Air Pollution on Further Reduction of Sulphur Emissions,
done on
June 13, 1994, pmbl., 1302 U.N.T.S. 217; Kyoto Protocol tothe United Nations Framework Convention on Climate Change, U.N. Doc.FCCC/CP/1997/L.7/Add.1, pmbl.,
reprinted in
37 I.L.M. 22.7
.
D
AVID
P
EARCE ET AL
.,
 
B
LUEPRINT FOR A
G
REEN
E
CONOMY
, Annex,
 
173-84(1989).8. The definition in the Brundtland Report, echoed in Principle 3 of the RioDeclaration, was: “development that meets the needs of the present withoutcompromising the ability of future generations to meet their own needs.” The BrundtlandReport,
supra
note 5, at 43. In contrast, the tone is quite different in the JohannesburgDeclaration on Sustainable Development:5. Accordingly, we assume a collective responsibility to advance and strengthenthe interdependent and mutually reinforcing pillars of sustainabledevelopment—economic development, social development, and environmentalprotection-- at the local, national, regional, and global levels.11. We recognize that poverty eradication, changing consumption andproduction patterns, and protecting and managing the natural resource base foreconomic and social development are overarching objectives of, and essentialrequirements for sustainable development.
Johannesburg Declaration on Sustainable Development,
 
in
 
U
NITED
N
ATIONS
D
EP
T OF
E
CON
.
AND
S
OC
.
 
A
FFAIRS
S
USTAINABLE
D
EVELOPMENT
D
IV
.,
 
R
EPORT ON THE
W
ORLD
S
UMMIT ON
S
USTAINABLE
D
EVELOPMENT
,
 
Annex ¶¶ 5, 11, U.N. Doc. A/CONF.199/20,

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