Abstract
This book explains how sustainable development has been defined and applied in international law. It also attempts to use public choice theory—which views various political actors as behaving in their own self-interest—to explain how and why sustainable development is implemented at the national level. It is more successful in the former than in the latter.
The authors, who are members of the Faculty of Law at Pázmány Péter Catholic University in Budapest, Hungary, begin by stating that ‘the definition of sustainable development is primarily a construction of international law’. They trace the origins of sustainable development at the international level, including the UN Conference on Environment and Development in Rio de Janeiro in 1992, in which nations adopted a plan of action for sustainable development and a set of principles to guide the effort.
While there is a long way to go before the term is fully articulated, they say, sustainable development nonetheless influences the direction of international law. They find a range of ways that sustainable development is used in treaties—including token or ‘fig leaf’ use of the term, use of sustainable development as a treaty’s primary goal, environmental treaties that acknowledge the importance of economic development and economic treaties in which sustainable development operates as an environmental constraint. The authors then look at the implementation of two treaties for managing shared fresh water resources—the Mekong River Basin and Lake Tanganyika. One would think that sustainable development would be an effective way to manage a shared resource, they say, because economic development by one country that adversely affects the resource would be constrained by environmental claims from other countries. But dam building and overfishing continue. They describe two International Court of Justice decisions that also involve dams—the 1997 Gabčíkovo-Nagymaros case between Hungary and Slovakia, and the 2010 Pulp Mills case between Uruguay and Argentina. According to the authors, the court in both cases passed up opportunities to further define the legal status of sustainable development.
The European Union treaty articulates sustainable development ‘as partly an objective, partly a principle’, they say, but not with enough clarity to serve as the basis for a legal obligation. The authors conclude that sustainability in the EU is ‘less of a legal principle’ and more of a ‘policy principle, the actual content of which is subject to changes’. The primary objective of EU policy, they say, is economic growth and employment. The more precise elements of sustainability appear in EU legislation as well as the various EU strategies for sustainable development. In the biofuels legislation, for example, sustainability criteria have been formulated as ‘enforceable requirements’.
While ‘sustainable development law cannot be considered a self evident concept, with a definite meaning and clear-cut instruments’, it is nonetheless based on a set of components that ‘may actually have legal consequences and at the same time serve sustainable development’. The most important of these, they suggest, is integrated decision making—incorporating environmental considerations and goals into economic and social development decisions. They also cite the precautionary principle, intergenerational equity and public participation as supporting principles.
The last two chapters survey the literature on why nations comply with international law. They also survey the public choice literature concerning domestic political actors (politicians, voters, interest groups and bureaucrats). The authors conclude that sustainable development is capable of influencing the behaviour of nations, notwithstanding its vagueness in international law, and the limited enforcement capability that exists under various treaties. Nations and political actors, in other words, will often move in a sustainable direction for their own reasons.
Although the authors’ conclusion is correct, it is not well explained. They claim to be creating a model for predicting changes ‘of national politics in response to the changes in international law or European sustainability law’. But their surveys of the literature say almost nothing about what that literature actually means for sustainable development. They move from description of the literature to their conclusion, in other words, with almost no analysis. For example, the public choice model for competition among lobbies assumes that the competition is a zero-sum game; one wins at the expense of others. But sustainability is often described in win-win terms. Perhaps sustainability is more likely to be achieved when that is actually true (e.g., energy efficiency in government and business operations) than when there are obvious potential losers (e.g., the coal industry in the US climate change debate). That kind of example is not used here, and examples of what their model actually predicts would have been helpful.
The book can also be hard to follow. The authors first state the book’s purpose on page 44, when they say that they seek ‘to answer the question whether the concept of sustainable development in public international law is sufficiently substantiated in order to effectively constrain environmentally harmful activities of the states’. But, as the last two chapters indicate, they are also suggesting that sustainable development influences policy formulation at the EU and national level in spite of its vagueness in international law, and in somewhat predictable ways. Proofreading errors (e.g., awkward sentences and singular/plural disagreement) also make the reader’s job harder.
That said, the book raises many important and provocative questions about the use of law in implementing sustainable development ‘in everyday life, in practice’. Not the least of these is the role of ethics in sustainable development law. Using papal statements and sources from other traditions, the authors argue that sustainable development has a moral or ethical foundation. The traditional development model must be revised, they say, because ‘the common good’ is not only material wealth for the present generation, but also the interest of future generations. Yet even here, the book would have benefited from an explanation of the extent to which this ethical perspective does—or could—influence decision makers.
Students and teachers will find the book a useful source of information as well as ideas. Many of the individual chapters would be excellent assignments for classes in sustainability or international law. For those who like a book that raises as many questions as it answers, this book will be especially appealing.