Sustainable development
comes from Saturn!

 
Dinah Shelton
explains that the rule of law provides the gravitational pull that holds together economic and social development and environmental protection, like the rings of the planet

Just over two years ago representatives of more than 190 countries at the World Summit on Sustainable Development in Johannesburg adopted a Declaration affirming their will to ‘assume a collective responsibility to advance and strengthen the interdependent and mutually reinforcing pillars of sustainable development’. They identified these inseparable pillars as: economic development, social development and environmental protection.

The language of the Declaration on Sustainable Development reflects a reality encountered throughout the world. Economic development and environmental protection require social development – efforts to promote and protect internationally guaranteed civil, political, economic, social and cultural human rights. Neither economic development nor environmental protection can be fully assured in the absence of respect for fundamental rights and freedoms. Certain rights – such as access to environmental information, public participation in governance and redress for environmental harm – may have particular importance in achieving environmental protection. Economic development also benefits from respect for specific human rights – especially rights to property, freedom of contract and the right to work. Recent economic studies reveal higher wages in developing countries that respect human rights.

Healthy resource base
Similarly neither economic nor social development is possible over the long term without environmental protection that assures a healthy and sustained natural resource base, because all humankind depends upon the Earth’s living and non-living resources. Human rights and economic development cannot be secured when the environment is degraded, threatening safe water, health, adequate food and housing – and life itself.

In turn, economic development is needed to realize social development and environmental protection, not least because poverty involves denials of basic rights and is a major cause of environmental degradation.

Perhaps the tripartite and interrelated dimensions of sustainable development can be observed most easily when unsustainable development occurs – for example, when indigenous or local communities are deprived of their traditional lands and resources. Such events may not just violate the human rights of members of the group, but lead to harm or destruction of the ecosystem and the economic base of the region, causing impoverishment rather than development.

A further dimension – the rule of law – provides the indispensable foundation for achieving all three of these essential and interrelated aspects of sustainable development. If economic development, social development and environmental protection are visualized as the rings of the planet Saturn, then the rule of law forms the planet itself: its gravitational pull holds the rings together and ensures their continued existence, stability and functioning. No aspect of sustainable development can be achieved without a basic normative framework, properly functioning judicial and administrative bodies, and transparent and open procedures providing for public participation in environmental decision making and redress when harm is done.
The protection of the environment has become a vital part of contemporary human rights law and doctrine
The very terms ‘protection’ and ‘rights’ suggest recourse to a system of law. A rights-based approach to environmental protection seeks to ensure through legal guarantees that environmental conditions do not deteriorate to the point where the right to life, the right to health, the right to a family and private life, the right to culture and the right to an adequate standard of living are seriously impaired. This can be done in two ways. First, the rights to information, participation and remedy can be made part of the laws concerning environmental protection, ensuring that the public plays a role in sound environmental decision making. That participation should be based on information about environmental conditions, activities and potential threats to resources. Second, environmental protection can itself become a right. In fact, the protection of the environment has become a vital part of contemporary human rights law and doctrine. In most countries, the list of constitutionally guaranteed rights includes a right to a safe and healthy, or satisfactory, ecologically balanced environment. Regional human rights treaties in Africa and the Americas also set forth such a right, adding in the former instance that the guaranteed environment is one suitable for development.

Right to remedy
It is part of the rule of law that ‘Where there is a right, there is a remedy’. This legal maxim finds support in the separate guarantee contained in constitutions and treaties that there is a right to a remedy when any legal right is violated. It appears not just in human rights texts, but in Principle 10 of the Rio Declaration on Environment and Development and in various environmental treaties.

The right to a remedy has two aspects: access to justice and substantive redress. Access to justice requires the existence of independent and impartial bodies capable of affording redress after a hearing that complies with due process guarantees. The role of the judiciary in this respect cannot be overemphasized.

A growing number of administrative and judicial bodies throughout the world are giving effect to the right to a remedy and other guarantees by enforcing laws related to the three pillars of sustainable development. Judges are increasingly hearing cases alleging violations of constitutional rights to a sound environment, sometimes relating the guarantee to the right to life or to health and providing a range of remedies to address environmental conditions. Judges are also educating each other about common problems that arise in environmental rights litigation – UNEP has been instrumental in facilitating such exchanges of judicial experience.

Gravitational pull
Besides the work of national tribunals, regional human rights bodies like the African Commission on Human Rights, the Inter-American Commission and Court, and the European Court of Human Rights have issued decisions and judgements insisting that environmental conditions and economic development can and must be compatible with human rights. Serious pollution has been found to violate one or more guaranteed rights, and environmental laws have been upheld against complaints that they violate property rights. In such cases, the tribunals have held that property use must be balanced with environmental protection.

The Johannesburg Declaration correctly described the indivisibility of the three components of sustainable development. Meanwhile the global jurisprudence that has emerged demonstrates the strong gravitational pull of the rule of law and its centrality to achieving the aims set forth in the Declaration


Dinah Shelton is Research Professor of Law at the George Washington University Law School, Washington DC.

PHOTOGRAPH: Ezequiel Becerra/UNEP/Topham


This issue:
Contents | Editorial K. Toepfer | Strengthening the rule of law | Partners in law | Justice can be shortsighted | Force of law | A matter of judgement | A law of energy | People | Rule of man, or rule of law? | At a glance: The rule of law | Sebastião Salgado | Sustainable development comes from Saturn! | One planet, different worlds | Nature’s wisdom | Kickback fightback | Conflict and cooperation | Holistic landmark | Empowering the poor | Legal climate | Small is effective | Building the framework


Complementary issues:
World Summit on Sustainable Development 2002
Poverty, Health and the Environment 2001