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).
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