State of the Art – Topic Group 9d: Law and SD

State-of-Art review

Sustainable Development emerged towards one of the key terms in international policy making with the past thirty years. One early starting point for this status constitutes the ‘World Conservation Strategy’ of 1980 (IUCN/UNEP/WWF, 1980; Pinto, 1995). In particular the famous definition of the World Commission on Environment and Development wherein ‘Humanity has the ability to make development sustainable – to ensure that it meets the needs of the present without compromising the ability of future to meet their own needs’ (WCED, 1987 p. 8.) fostered the discussion.

With this background the term became a main issue of the World Summit of Rio 1992 and was highly influencing main documents adopted at this occasion. This is in particular valid for the Rio Declaration and for the Local Agenda 21 as its implementing legal vehicle for the local level (Malanczuk, 1995). In 2002 the term constituted then a part of the name as well as the central subject of discourse for the World Summit in Johannesburg. Moreover, ‘ensuring environmental Sustainability’ was included into the Millennium Assessment as the 7th of eight Millennium Development Goals to be achieved by 2015 (MDGs, 2014). International, regional, national and subnational environmental law didn’t keep out of this discussion (Carlman, 2008; Mauerhofer, 2008a; Ross, 2009) but actively contributed to its emergence which can be detected by a steady increase of the legal use of ‘sustainable development’ or similar terms (Mauerhofer, 2012). In particular during the past three pentads, aspects of sustainable development also gained increased attention among legal scholars and were addressed in diverse multi-dimensional, horizontal and sectorial ways (Boyle and Freestone, 1999. Cordonier Segger and Khalfan, 2005; Dernbach and Mintz, 2011; Voigt, 2013; Kotzé, 2013). Also already Rawls (1971) dealt with intergenerational legal issues that constitute core aspects of sustainable development although he did not explicitly address the term as such. Just recently all UN-members reconfirmed in the outcome document of the global Rio+ 20 conference their commitment to Sustainable Development and its environmental, social and economic dimensions (TFWW, 2012). However, how these dimensions are interconnected, how the trade-offs among them should be made and which priorities to be set when, remain often rather vague in political documents; imprecise attributes such as ‘integrated’, ‘balanced’, ‘inclusive”, ‘coherent’, and ‘consistent’ for the solution of the inherent conflicts of interest have been already criticized and constitute rather the rule than the exemption (Mauerhofer, 2008a; Kamau et al., 2010; Kallio et al., 2007). In any way, when it comes to closer delineate the relationship among these three dimensions, the extent and the shift of the burden of proof constitute key legal issues (Kazazi, 1996; Kokott, 1998; Mauerhofer, 2008b; Opdam et al., 2009).

‘De lege ferenda’, the role of the rule of law can be seen in two central tasks towards ensuring environmental sustainability, namely 1) to fix the ecologically sustainable scale and 2. to lay down flexible trade-offs mechanisms with the social and economic dimensions of sustainable development; ‘de lege lata’, perspectives for the improved implementation and enforcement of international environmental law without necessarily modifying the situation should be explored (Mauerhofer, 2016).  Recent scholarly work also started to explore the views on sustainability within legal practice (e.g. Dernbach, 2017).

Literature used and suggested:

Boyle A., Freestone D., 1999. Introduction, in: Boyle A. and Freestone D. (Eds.), International Law and Sustainable Development - Past Achievements and Future Challenges, Oxford University Press, pp. 408

Carlman I., 2008. Control System for Sustainable Development. Proceedings of the Computing Anticipatory Systems: CASYS=07 C Eighth International Conference, Dubois D. M. (Ed.) American Institute of Physics, 1051: 187-194;

Cordonier Segger M.-C. and Khalfan A., 2005. Sustainable Development Law: Principles, Practices, and Prospects Oxford University Press, pp. 492.

Dernbach J.C. and Mintz J.A., 2011, Environmental Laws and Sustainability: An Introduction, Sustainability, 3, 531-540 (download at accessed 04.01.2017)

Dernbach, J.C., 2017. Sustainable Development in Law Practice: A Lens for Addressing All Legal Problems. Denver University Law Review, Vol. 95, No. 123, 2017; Widener Law Commonwealth Research Paper No. 15-44. (download at accessed 04.01.2017).

IUCN/UNEP/WWF, 1980. World Conservation Strategy, International Union for Conservation of Nature and Natural Resources (IUCN)/United Nations Environment Programme (UNEP)/World Wide Fund for Nature (WWF) (download e.g. at accessed 04.01.2017)

Kallio T.J., Nordberg P. and Ahonen A., 2007. Rationalizing Sustainable Development – a Critical Treatise, Sustainable Development 15, 41–51.

Kamau E.C., Fedder B. and Winter G., 2010. The Nagoya Protocol on Access to Genetic Resources and Benefit Sharing: What is New and what are the Implications for Provider and User Countries and the Scientific Community? Law, Environment and Development Journal 6/3 246-262 (download at accessed 04.01.2017)

Kazazi M., 1996. Burden of proof and related issues: A study on evidence before international tribunals. Kluwer Law International, Studies and materials on the settlement of international disputes, pp. 406.

Kokott J., 1998. The burden of proof in comparative and international human rights law: Civil and common law approaches with special reference to the American and German legal systems. Kluwer Law International, Studies and materials on the settlement of international disputes, pp. 291.

Kotzé L.J., 2013. Sustainable development and the rule of law for nature: a constitutional reading, in: Voigt, C. (Ed.) Rule of Law for Nature: New Dimensions and Ideas in Environmental Law, Cambridge University Press, 130-145.

Malanczuk P., 1995. Sustainable development: some critical thoughts in the light of the Rio Conference in in: Ginther K., Denters E. and de Waart P. J.I.M. (Eds), Sustainable Development and Good Governance, Martinus Nijhoff Publishers, 23-52.

Mauerhofer, 2008a. 3-D Sustainability: An approach for priority setting in situation of conflicting interests towards a Sustainable Development’, Ecological Economics 63, 496-506.

Mauerhofer, V., 2008b. Conservation of wildlife in the European Union with a focus on Austria, in: Raj Panjwani (Ed.) Wildlife Law: A Global Perspective. American Bar Association (ABA) Publishing, pp. 1-55;

Mauerhofer, V. 2012. A legislation check based on ‘3-D Sustainability’ – addressing global precautionary land governance change’, Land Use Policy 29, 652–660.

Mauerhofer V., 2016. 3-D Sustainability and its contribution to governance assessment in legal terms: examples and perspectives. In: Mauerhofer V. (Ed.) Legal Aspects of Sustainable Development: Horizontal and Sectorial Policy Issues, Springer International Publishing Switzerland, pp. 35-56.

MDG- Millennium Development Goals, 2014 (download at,  accessed 04.01.2017).

Opdam, P.F.M., Broekmeyer, M.E.A., Kistenkas, F.H., 2009. Identifying uncertainties in judging the significance of human impacts on Natura 2000 sites, Environmental Science & Policy 12, 912–921;

Pinto M.C.W., 1995. Reflections on the term sustainable development and its institutional implications, in: Ginther K., Denters E. and de Waart P. J.I.M. (Eds), Sustainable Development and Good Governance, Martinus Nijhoff Publishers, 72-99.

Rawls J., 1971. A Theory of Justice. Belknap Press 560 pp.

Ross A., 2009. Modern Interpretations of Sustainable Development, Journal of Law and Society 36, 33-54.

TFWW, The Future We Want (TFWW). Outcome Document adopted at the United Nations Conference on Sustainable Development, in Rio de Janeiro, Brazil in June 2012  (download at, accessed 04.01.2017).

Voigt C., 2013. The principle of sustainable development: integration and ecological integrity, in: Voigt C. (Ed.) Rule of Law for Nature: New Dimensions and Ideas in Environmental Law, Cambridge University Press, 146-157.

WCED-World Commission on Environment and Development, 1997. Our Common Future. Oxford University Press. 1987 p. 8.)