A Council for Sustainable Development: A Possible Outcome of the Rio+20 Process (3-3)

A Possible Outcome of the Rio+20 Process was prepared by Jan-Gustav Strandaneas for Stakeholder Forum. It is important to compare the expected outcome from the Conference with the actual results that was agreed upon on Rio+20, so it is necessary to know what the expectation was as detailed in this report under review.

Sustainable development

As in most cases, the overarching arena is governance. Patricia Birnie and Alan Boyle elaborate and develop an understanding of governance and the intergovernmental system in their almost 800 page long seminal study on “International Law and the Environment”31. They state that “Although their powers vary widely, a growing number of UN specialized agencies and other international organizations with some measure of competence over environmental matters have become important institutions of global and regional environmental governance.
Used in this sense, the term ‘governance’ when applied to the UN and its agencies implies rather less than global government, a task for which no international organization is equipped, but more than the power to determine policy or initiate the process of international law-making.
At the very least it captures the idea of a community of states with responsibility for addressing common problems through a variety of political processes which are inclusive in character, and which to some degree embody a limited sense of collective interest, distinct in specific cases from the particular interest of individual states.” This could very well be a description of the philosophy behind the council on sustainable development. Birnie and Boyle elaborate on their points: “These autonomous treaty bodies have been likened to a species of international organisations whose main role is to promote implementation and compliance with specific regulatory regimes. In contrast, the most valuable contribution made by the UN and related organizations.... has been their ability to influence the international policy-making agenda, and to initiate or facilitate many of the most important law making developments.....”
Even though a council on sustainable development is established, this will neither be a short term nor a long term panacea for sustainable development. It is well to remember as Birnie and Boyle observes that “...International organisations have in this way become an important part of the law making process, even if they are not in themselves the process. In this context their most obvious and indispensible role is to provide a permanent forum where states and other participants can engage in dialogue and negotiations, facilitating the compromises necessary for law-making by states at very difficult stages of economic and social development and representing an array of legal cultural and religious systems and values. It is important to recall however, that although many intergovernmental organisations will have a legal personality separate from their members, they have few, if any, powers of independent action and progress in the development of policy and law depends entirely on the willingness of member states to propose, to adopt and to implement whatever is agreed. What emerges from any international organisation will inevitably reflect the interest and concern of its members, as well as the voting structure within each organisation, and may not always coincide with the priorities of the international community of states as a whole, still less of the environmental NGOs”.
This could have been a description of CSD, and it may very well also be a description relevant to a council on sustainable development. But the statement demonstrates that without the political will of member states, neither the development of a new council nor an implementation of sustainable development will be possible.


Governance and international law

Denounced as an impossible scientific concept and an equally impossible political equation when it was formally launched into the UN by the Brundtland commission in 1987, sustainable development is still very much alive more than two decades after its entrance onto the international agenda. It will of course be imperative to the functionality of the council to understand how the three pillars of sustainable development will be integrated in the UN structure, and this task should by no means be underestimated. States Birnie and Boyle: “The notion of sustainable development is thus inherently complex and its implementation obliges governments to think in somewhat different terms from those to which they have become accustomed.”
Birnie and Boyle take the concept into the political and legal spheres in their book and state that a plausible interpretation of sustainable development is that it entails a compromise between the natural environment and economic growth. They also state quite emphatically that “development will only be sustainable if it benefits the disadvantaged without disadvantaging the needs of the future”. Birnie and Boyle also trace the development environmental and sustainable development issues through a historical and legal perspective and make an effort to show that the concepts are highly relevant in solving this century’s many challenges : “Sustainable development offers us a unifying concept for the exploitation of natural resources and the integration of environment and development.” Even so, this is no easy task, because “its implementation requires a considerable departure from earlier economic policy.”  With the advent of the green economy discussion, the renewed interest in environmental and sustainable development governance as well as the poignant ‘emerging issues’, the time is ripe to think in different terms than what we have been accustomed to. We certainly do not lack an experienced background upon which to base a new sustainable development paradigm.
UN decisions do have an impact on legal matters, a phenomenon not well understood nor generally appreciated. The Commission on Sustainable Development was never given a mandate to look into legal matters concerning sustainable development. But as Birnie and Boyle note: “Normative uncertainty, coupled with the absence of justifiable standards for review, strongly suggest that there is as yet no international legal obligation that development must be sustainable, and that decision on what constitutes sustainability rest primarily with individual governments.