Justice can be

Christopher Weeramantry
outlines shortcomings in modern legal systems in the light of sustainable development and calls on judges to bring longer perspectives to the bench

Sustainable development is one of the most vibrant topics in both domestic and international law. Judges, as custodians of the law, have a major obligation to contribute perspectives that might otherwise pass unnoticed.

The gap between the world’s rich and poor – which modern technology should enable us to narrow – unfortunately keeps widening. Development is the bridge by which we can cross it. Unfortunately, we tend to build this bridge with material stolen from future generations. Similarly, development is taking place all over the world without regard to environmental considerations. This hurts two groups in particular – the unborn and the poor. Neither has the ability to assert its rights. Neither is sufficiently vocal. The judiciary must hold the balance between powerful interests on the one hand and the voiceless on the other. This imposes an enormous role of trusteeship upon the judiciary, which has a delicate act to perform in balancing the rights and needs of those who are now alive with those of future generations.

African traditional wisdom teaches us that the human community is threefold: those who went before, those who are alive here and now, and those who are yet to come. No human problem can be completely considered without reference to all those three. Yet we tend to look at environmental matters with blinkers on. We do not look at the traditions that have come down to us from the past. We do not look at those who are going to be deprived in the future. We just concentrate on the present. Modern law is shortsighted. Who is better placed to supply the necessary correctives than the judiciary?

Developing concepts
There are many different principles within the principle of sustainable development. These include intergenerational rights, the trusteeship principle, the principle of collective duties, the emphasis on duties rather than rights, the precautionary principle, the concept of the interrelationship of rights and obligations, rights and duties erga omnes (ie towards the whole of the human community) and so on. All of those are concepts which judges are able to develop. The judiciary is at the centre of the development of the concept of sustainable development.

Humanity has lived with its environment for thousands of years. Out of that cohabitation, principles have evolved and become ingrained in the traditions of many cultures and civilizations. The law that judges administer must be a multicultural assemblage of the wisdom of the world. If we look at the wisdom of China, Japan, Europe itself before the Industrial Revolution, the Islamic civilizations, India, Sri Lanka, Africa and its outstanding examples of environmental conservation, Australia, the Native Americans and so forth, we will learn respect for the one common environment which we all inhabit. Modern law tends to lose sight of such ancient wisdom and the judiciary has a sterling role to play in bringing it into modern judicial discourse.

Sri Lanka was converted to Buddhism through the mission of the Emperor Asoka’s son 23 centuries ago. He came to Sri Lanka as a monk and accosted the king when he was on a hunting expedition. ‘What is this you are doing?’ he asked. ‘You are hunting these poor animals and behaving as if you are the owner of this land. You are not the owner of this land. You are only the trustee, bear that in mind. And you hold it in trust for all living creatures who are entitled to use it.’ This is the first principle of modern environmental law. The trusteeship principle is as old as humanity, as old as human beings living together on the planet in a common environment.

We must devise similar concepts, and the procedures to deal with them, because we are interested not just in the development but also in the enforcement of environmental law. One concept is continuous mandamus, the question of standing. How can generations yet unborn appear before a court and state their case? Who stands for them? We have to develop that concept. We have to develop impact assessment procedures. We have to develop the precautionary principle. We also must look at some of the shortcomings of our modern legal systems.

Collective rights
There is, for example, an excessive emphasis on individual rights, rather than on collective ones. Collective rights are very important for living life together in a common environment. If you only think of individuals, you tend to think mainly of powerful individuals and those asserting their rights, which is not in the best collective interest of the community, or of the environment. There are excessive emphases on land and on law as a means of passive coexistence rather than of active cooperation. Law is not just a means of keeping the peace but also a means of active cooperation for the benefit of the community.

There is also excessive emphasis, particularly under the influence of 19th century positivism, on the letter of the law. Yet all our great traditions say the letter of the law is not as important as the principles that lie behind it. Many tend to regard contractual rights as ones with which other people – the court, the state and so on – cannot interfere because they spring from a private arrangement between two parties. Yet this arrangement can concern the whole community. If somebody sells or leases his land to somebody else, that person cannot use it like an article of movable property to do with it what he will. Certain obligations towards the community follow from the ownership of land.

There is a concentration on the present generation rather than on all those yet to come. We also think of ourselves, human beings, as the only entities that have rights on this planet. And although the law tends to know no cultural bounds, we do not yet think of ourselves as multicultural. All this has led to much shortsightedness and many environmental problems.

Active cooperation
The law of the future must be a law of active cooperation, rather than of passive coexistence. No state has the prerogative to say that what happens within its borders is exclusively its concern. The highest custodians of justice, the judiciary, must be conscious of this because they are dealing with the highest concern of humanity, the custody of this planet.

Judges cannot achieve competence in their chosen work unless they keep abreast of developments in the law. They cannot keep abreast of these unless they concern themselves with international law and with the great currents of thought moving in the international sphere. Judges need to be sensitized to the problem, alerted to their responsibilities, and provided with the conceptual and procedural tools with which to achieve this momentous task

Justice Christopher Weeramantry is a former Vice President of the International Court of Justice.

PHOTOGRAPH: Erna Lammers/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:
Culture, values and the environment 1996
Disasters 2001
World Summit on Sustainable Development 2002