The Legal Status of Sustainable Development in Environmental Law

Facilitator: Dr. Emmanuel Okon
Senior Research Fellow and Head of International Law Department

The dilemma faced by states, international and national courts, and legal scholars in promoting sustainable development in environmental governance has always been whether sustainable development is a moral or legal concept and, if it is the latter, whether it has metamorphosed into a legal principle or rule capable of having normative value. Sustainable development lacks precise definition. Its original conceptualisation is defined in ‘Our Common Future’ (otherwise known as the Brundtland Report) as “…development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. The legal status of sustainable development in environmental law can only be ascertained by examining the pronouncement of international and national courts on it. Where the legal status of sustainable development in an international instrument or legislation has not been made the subject of any adjudication, then ascertaining its legal status depends on whether or not it is incorporated into a binding or soft law on the environment. Indeed, within the context of a binding law, the legal status of sustainable development will further depend upon whether or not it is placed in the preamble, recital or the operative part and, if in the later part, whether it is expressed in a general or specific mandatory language. The veracity of this argument can be ascertained by applying a qualitative content analysis of case law, international instruments and municipal laws on environment. This is done from the international and Nigerian perspectives.

The International Court of Justice (ICJ) in Gabčíkovo-Nagymaros Projects (Hungary/Slovakia) Judgment. recognised that new norms and standards on environmental management (of which sustainable development is one) have been developed and set forth in a great number of instruments, which have to be taken into consideration and given proper weight when States contemplate new activities or continue with activities begun in the past. Regrettably, the ICJ ended up referring to sustainable development as a ‘concept’. The inconsistency in the ICJ’s judgment must have prompted Justice Weeramantry to commence his separate opinion by pointing out that “the court has referred to it as a concept…, I consider it to be more than a concept, but as a principle with normative value.”
In Iron Rhine (Belgium v. Netherlands) Award , the Arbitral Tribunal established under the Permanent Court of Arbitration recognised the debate as to what, within the field of environmental law, constitutes “rules” or “principles” “soft law” and which treaty law or principles have contributed to the development of customary international law. It then took a somewhat reverse position of the ICJ in Gabčíkovo-Nagymaros Projects case by first considering sustainable development to be a concept and ended by cautiously noting that “in that context the Court (ICJ)) further clarified that “new norms (sustainable development inclusive) have to be taken into consideration”

More recently, in Pulp Mills on the River Uruguay (Argentina v. Uruguay) the ICJ in its majority decision did not make any specific pronouncement on whether sustainable development is a principle or rule. Indeed, the majority judgment completely failed to dwell on other principles or rules of international environmental law which both parties, Argentina and Uruguay, invoked. This must have provoked Judge CanÇado Trindade to commence his separate opinion by noting the “unfortunate overlooking of the general principles of law” by the ICJ in its majority decision. Despite noting in Para 141 of his separate opinion that Argentina and Uruguay were not consistent on how they addressed sustainable development, Judge CanÇado Trindade came to the conclusion that:
Both Argentina and Uruguay were quite aware of the inter-temporal dimension underlying sustainable development as a principle of International Environmental Law, and the ICJ should, in my view, have taken note of, and endorsed, sustainable development as such, thus contributing to progressive development of International Environmental law.

With regards to international instruments, Article 2 of the Fish Stock Agreement (FSA) of 1995 provides for a long-term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks (SHMFS) as the objective of the FSA. Although, the said article 2 is in the operative text of the FSA, it is expressed in a broad term. Hence, it is incapable of creating a treaty rule or general principle. Article 5 of the FSA itemises the general principles that will ensure the long-term sustainability of SHMFS. Interestingly, Article 5(a) largely reiterates the objective of the FSA as the first general principle. Although, the term ‘principle’ implies a higher normative content that ‘objective’ the broad wordings of Article 5(a) makes it impossible for sustainable development to acquire any normative value. Since, article 5(a) does not create a legal principle in the strict sense, it is incapable of creating rights and obligations.

In Nigeria, section 1(2) of the National Environmental Standards and Regulation Enforcement Agency (Establishment) Act 2007 No. 25 (NESREA Act) provides that the Agency shall have, among other things, the responsibility for the sustainable development of Nigeria’s natural resources in general. By creating a specific duty for the Agency to ensure the sustainable development of Nigeria’s natural resources, it means that sustainable development can be the legal basis of the Agency instituting environmental action against individuals and corporate persons in Nigeria. In the same vein, the Agency could be sued for failing to ensure the sustainable development of all natural resources in Nigeria. Whether any person can sue the Agency to compel it to comply with the provision of section 1(2) of the NESREA Act depends on what will be the state of judicial activism on locus standi in environmental matters. Indeed, the truth as put forward by Kameri-Mbote and Odote is that “the effectiveness of substantive legal provisions to protect the environment hinges upon accompanying procedural provisions to facilitate enforcement”.

With regards to case law, in Nigeria, the first time serious reference was made to sustainable development was in Attorney-General of Lagos State v. Attorney-General of the Federation & 35 Ors . In this case, Lagos State challenged the constitutionality of the Federal Government relying on the Nigerian Urban and Regional Planning Act 1992 (NURPA) (formerly Decree No 88 of 1992) to interfere with and make incursions into the arrangement of the Lagos State Government in town and country planning matters notwithstanding its own Town and Country Laws. One of the major issues canvassed by Counsels on both side of the case was whether the Federal Government may rely on the NURPA to legislate for the states on urban and regional planning pursuant to section 20 of the 1999 Constitution as altered. Section 20 of the 1999 Constitution provides for the state to protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria. It was in an attempt to address this issue that sustainable development crept into the jurisprudence of the Supreme Court of Nigeria without the Court expatiating or ascertaining its legal status since that was not one of the issues canvassed before the court. Uwaifo JSC who delivered the leading judgment referred to the argument of the Attorney-General of Anambra State in support of the plaintiff thus

She argues that legislation provided the legal framework for the improvement of policies, goals and objectives pertaining to environmental protection, natural resources conservation and sustainable development.

Again, Ejiwunmi and Ayoola JJSC joined Uwaifo JSC in agreeing with the distinction made by Mr Paul Usoro, Counsel to Niger State, the 26th Defendant, regarding the relationship between urban and regional planning and environment thus

It is of course correct and imperative that urban and regional planning must take account of environmental factors and seek always to protect and develop Nigeria’s environment and conserve its biodiversity and promote the sustainable development of Nigeria’s natural resources. However, it is our submission that the two roles –urban and regional planning and management of the environment – are distinct and separate under the constitution and cannot and should not be merged.

Interestingly, Uwaifo and Ejiwunmi JSC accepted Mr Usoro’s position on distinction between the two areas of activities. On the other hand, Ayoola JSC took a different stand that planning and environment regulation may at their core be distinct activities, it cannot be denied that these activities may overlap. Quoting from a passage in Halsbury’s Laws of England (4th Edition) Vol. 46, para 1 Ayoola said “the town and country planning system is designed to regulate the development and use of land in the public interest; and it is an important instrument for protecting and enhancing the environment in town and country …” The use of town and country planning for regulation development and protection of environment makes it an effective regulatory tool (just like environmental impact assessment) that ensures integration of environmental concerns into development projects, which is the threshold of sustainable development.

Considering the influence which the separate opinions of Judges or Arbitrators of international courts or arbitrations have on subsequent judgments of such institutions, it is just a question of time before the ICJ and the Arbitral Tribunal agree that sustainable development has at least attained the status of a general principle of international environmental law. No doubt, sustainable development has acquired a rule of law status under the NESREA Act, but its enforcement depends on the state of judicial activism on locus standi. Importantly too, the courts will not suo moto determine the legal status of sustainable development if it not directly or indirectly canvass in counsels’ briefs.

This note was contributed by Dr Emmanuel E. Okon, a Senior Research Fellow and Head of International Law Department, Nigerian Institute of Advanced Legal Studies.