What Sustainable Development Means
Chapter Twenty-Nine
Syllabus topic 2, "Sustainable Development."
Pages 86 to 88 of 663
In one line
Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs, and its legal work is to stop two accepted rights, to develop and to a healthy environment, from cancelling each other out.
In exam wording: sustainable development, as defined in the report of the World Commission on Environment and Development 1987, is development which meets the needs of the present without compromising the ability of future generations to meet their own needs; it contains two key concepts, the concept of needs, in particular the essential needs of the world's poor, to which overriding priority should be given, and the idea of limitations imposed by the state of technology and social organisation on the environment's ability to meet present and future needs.
Why the law has this at all
Because by the 1980s two propositions were both accepted and they contradicted each other.
Proposition one. Every State has a right to develop. That is the whole force of decolonisation, of permanent sovereignty over natural resources and of the Declaration on the Right to Development 1986.
Proposition two. Every State must protect the environment. That is Stockholm Principle 21 and the customary duty of prevention.
A poor State asked to leave its forests standing and its coal in the ground is being asked to give up the first for the second. Sustainable development is the concept that says the two are not alternatives, and it was invented precisely to make an agreement at Rio possible.
The four elements a court actually uses
Reduce the phrase to what a judge can apply and you get four elements. Every one of them appears in the cases.
- Intergenerational equity. The present generation holds the environment in trust for those who come after.
- Sustainable use. Exploitation at a rate the resource can bear.
- Equitable use, or intragenerational equity. One State's use must take account of the needs of others.
- Integration. Environmental considerations must be integrated into economic and development plans. Rio Principle 4 states this: 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.
What the courts have made of it
Internationally, it is a device for reconciliation rather than a rule. In Gabcikovo-Nagymaros Project the Court said the need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development, and it required the parties to look afresh at the environmental effects of the project. It did not say that sustainable development obliged either of them to do any particular thing.
In India it is stronger. In Vellore Citizens' Welfare Forum v. Union of India, AIR 1996 SC 2715, the Supreme Court held that sustainable development is a balancing concept between ecology and development which has been accepted as part of customary international law, and that the precautionary principle and the polluter pays principle are essential features of it. That holding put the two principles into Indian law.
What Sustainable Development Means
The instruments
| Instrument | Year | What it added |
|---|---|---|
| Stockholm Declaration | 1972 | Principles 1 to 5 on the responsibility to safeguard resources for present and future generations |
| Brundtland Report | 1987 | The definition |
| Rio Declaration | 1992 | Principles 3 and 4: the right to development must be fulfilled equitably for present and future generations; environmental protection is an integral part of the development process |
| Agenda 21 | 1992 | The programme |
| Johannesburg Declaration | 2002 | The three pillars: economic development, social development and environmental protection |
| The 2030 Agenda | 2015 | Seventeen Goals with 169 targets |
The three pillars formula from Johannesburg is worth memorising, because it is the form in which the concept is now usually stated: economic, social and environmental, interdependent and mutually reinforcing.
Worked example
A State plans a port on a coastline with mangrove forest. Apply the four elements.
- Intergenerational equity. Mangrove takes decades to re-establish. What is lost is lost to the next generation, so the loss counts more heavily than an equivalent loss of something that regenerates in a season.
- Sustainable use. Is any part of the mangrove being used at a rate it can bear, or is the whole of it being replaced?
- Equitable use. Who else depends on it? Fisherfolk downstream, and a neighbouring State if the system is shared.
- Integration. Was the environmental question part of the port's design and site selection, or was it addressed after the site was chosen? Rio Principle 4 makes the difference legally relevant.
A court applying sustainable development does not ask whether the port is good or bad. It asks these four questions and looks at how the decision-maker answered them.
What it does NOT mean
It does not mean development must stop. The Brundtland definition is a definition of development, not a prohibition on it, and the priority it gives to the essential needs of the poor is part of the definition.
It does not mean the environment always wins. In M.K. Ranjitsinh v. Union of India, (2024) 5 SCC 597, the climate consideration outweighed the habitat of a critically endangered bird, and the Court modified its own earlier protective direction.
It is not a rule with a determinate content. That is the standing criticism, and an examiner will reward a candidate who states it: a concept that can be invoked by both sides of every dispute decides none of them by itself. What it does is force both sides to be weighed, which is not nothing.
What Sustainable Development Means
Quick revision
- The Brundtland definition, 1987, and its two key concepts: needs, especially of the poor, and limitations.
- Four elements: intergenerational equity, sustainable use, equitable use, integration.
- Rio Principles 3 and 4; the Johannesburg three pillars.
- Gabcikovo uses it to reconcile; Vellore calls it customary and puts precaution and polluter pays inside it.
- Criticism: indeterminate content; it structures the argument rather than deciding it.
Test yourself
1. Give the Brundtland definition and its two key concepts. Development which meets the needs of the present without compromising the ability of future generations to meet their own needs. The two key concepts are needs, in particular the essential needs of the world's poor, and the limitations imposed by technology and social organisation on the environment's ability to meet those needs.
2. Which Rio principle states integration, and what does it require? Principle 4. Environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.
3. What did Vellore hold about the status of sustainable development? That it is a balancing concept between ecology and development which has been accepted as part of customary international law, and that precaution and polluter pays are essential features of it.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.