Welcome to Thematic Working Group 7e
Legal Aspects of SD
Legal aspects of Sustainability deal with the challenge to appropriately define, implement and enforce the scale of human and non-human use of resources, and the distribution of these resources to users and products. The rule of law is an instrument that exclusively is available to public authorities while it interrelates with all other available instruments whether applied by public or private actors. This interrelation can help to prevent or reverse negative developments by aiming at absolute improvements. Law has also sometimes limitations, e.g. due to its introduction on various geographical levels and the interplay between them. And it has its restrictions as envisaged changes are often better addressed by other instruments or a combined approach.
The goal of this working group is to discuss key concepts, methods and applications of legal aspects of sustainability and lessons learned. We will further map opportunities of and challenges for legal aspects in a sustainable development in various thematic and strategic subjects, thereby contributing to the development of these domains scientifically and practically.
Working Group Chairs
Dr. Volker Mauerhofer
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, 2014).
The research field of “Legal Aspects of Sustainability” can be considered multi-dimensional and –faceted, new issues and discussion points on existing issues are emerging constantly. Despite that, below some key issues of the discussion listed:
- Legal aspects of Environmental, Social and/or Economic Sustainability and their interplay
- Legal instruments and their interplay with environmental/social/economic capital in terms of stocks/sources
- Legal instruments and their interplay with environmental /social/economic capacity in terms of flows
- Legal instruments in order to sustain planetary boundaries/ecological integrity/social and environmental carrying capacity also with the back ground of population questions
- The interplay on legal and other instruments in multilevel governance regimes addressing sustainability
- Innovative local, national, regional & international legal principles/approaches/assessments towards more sustainability incl. e.g. degrowth law, green economy law, public participation, soft law & customary law
- The role of sustainability law for institutional change and government policy also towards future generations
- Legislative, administrative, judicial decision-making & enforcement by law in terms of priority setting, ignorance, uncertainty, risk, conflicts of interest and trade-offs; absolute and relative achievements by law
- The role of law for property rights, new commons, the Post2015 Agenda & Sustainable Development Goals
- Effective conservation of natural assets and in particular biodiversity within the planetary boundaries especially through protected areas and sustainable use
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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 http://www.mdpi.com/2071-1050/3/3/531)
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 http://cisdl.org/biodiversity-biosafety/public/docs/wcs.pdf)
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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., 2014. Challenging the labyrinth: sustainable scales, trade-offs and perspectives through Environmental Law, in: Sancin V. and Kovič-Dine M.(Eds.) International Environmental Law: Contemporary Concerns and Challenges in 2014. Ius Software, d.o.o, GV Založba, 25-42.
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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
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.)[/three_quarters]