3.3 From sustainable development to ecologically sustainable development: a
3.3.1 Intergenerational equity
The principle of intergenerational equity is enshrined in the Stockholm Declaration's recognition of the obligation to safeguard the earth and environment against degradation
"for the benefit of present and future generations through careful planning or
175 The Brundtland Report 43.
176 The Brundtland Report 43.
177 Schrijver De Verankering En Betekenis Van Duurzame Ontwikkeling in Het Internationale Recht 1, 5 who notes that implicit in the definition of the Brundtland Report is the notion that the "natuurlike hulpbronne mogen niet door een kleine groep mensen (in industrielanden) worden opgesoupeerd"
("natural resources must not be consumed by a small group of people (in industrialised countries)").
178 Tladi Sustainable Development in International Law 40.
179 Schrijver De Verankering En Betekenis Van Duurzame Ontwikkeling in Het Internationale Recht 6 as cited in Tladi Sustainable Development in International Law 40 contends that the definition of sustainable development in the Brundtland Report further implies that "de huidige generatie toekomstige generaties van mensen niet mag opschepen met onherstelbare schade aan milieu, gezondheid of economie …" ("the present generation may not disadvantage future generations with irreversible damage to the environment, state of the economy …"). Also see Tladi Sustainable Development in International Law 40.
103
management".180 Moreover, intergenerational equity is also arguably symbolised in the most comprehensive manner through the Brundtland Report. That is, "development that meets the needs of the present" generation "without compromising the ability of future generations to meet their own needs".181 The principle of intergenerational equity has thus gained recognition in the domain of international law.182 Even critics of the theory have conceded that the principle has significantly influenced the development of international environmental jurisprudence.183
Apart from international instruments, intergenerational equity is also recognised in section 24 of the Constitution which provides for the right to have the environment protected "for the benefit of present and future generations".184 This means that the present generation ought to ensure that productivity, diversity and health of the environment is preserved or improved for the 'benefit of present and future generations'.
Moreover, intergenerational equity has also been endorsed by a number of notable scholars. Weiss,185 for instance, describes the principle of intergenerational equity as one that suggests that the present generation owes future generations the duty to preserve
180 Principle 2 of the Stockholm Declaration. Needless to say, the principle of intergenerational equity predates the Stockholm Declaration. It can be extrapolated from the preamble of the International Convention on the Regulation of Whaling 161 Unts 72, 62 Stat. 1716 1946 which recognises "interests of the states of the world in safeguarding for future generations the great nature resources represented by the whale stocks".
181 The Brundtland Report 43.
182 Brown Weiss 1984 Ecology LQ 540 notes that intergenerational equity is an obligatioerga omnes. It has been incorporated, either expressly or implicitly, into various international environmental instruments and policy setting documents such as Principle 2 of the Stockholm Declaration; the Brundtland Report 33, 43; Principle 3 of the Rio Declaration; article 3(1) of the United Nations Framework Convention on Climate Change 31 Ilm 851 1992 .
183 D'Amato 1990 The American Journal of International Law 190.
184 Section 24(b) (iii) of the Constitution.
185 Weiss In Fairness to Future Generations 2, although a number of suggestions expressed in this book were developed earlier in Brown Weiss 1984 Ecology LQ 495-582, a seminal contribution to understanding intergeneration equity. Also see Minors Oposa V Secretary of the Department of Environmental and Natural Resources 33 Ilm 173 1994 8 10, 16 wherein the applicants averred that the present and future Filipinos had a right to a balanced ecology. The court concluded that the applicants could sue not only on their behalf, but also on behalf of future generations.
104
the earth and leave it in no less a condition than they found it. Notably, the main thrust of Weiss's assertion is that:
Each generation receives a natural and cultural legacy in trust from previous generations and holds it in trust for future generations. This relationship imposes upon each generation certain planetary obligations to conserve the natural and cultural resource base for future generations.186
Intergenerational equity acknowledges that present day developmental activities, particularly economic activities, could pose a burden to future generations.187 In other words, intergenerational equity is rooted in the notion that developmental activities strain natural resources at a greater rate than that which the natural resources can replenish themselves.188 If left to continue unabated, future generations would be striped of these life sustaining natural resources.189
In other words, if developmental activities are unrestrained, future generations will be left without life sustaining natural resources, thereby defeating the purpose of ecological sustainability. Developmental activities should therefore be conducted within ecological limits. That is to say, in contemplating whether a certain developmental activity is within ecological bounds, humanity ought to ask the following questions: Whether the said activity will negatively impact the environment, (and the extent to which it would)?
Whether the natural resource(s) being used can actually be replenished, (as opposed to window dressed replenishment through tick box fashioned Environmental Impact Assessments (hereinafter EIA)? And whether the particular developmental activity will not leave the environment in a worse off state than it already was (actual scientific specificities)? The purpose of engaging such questions is to ensure that future generations find an environment that is habitable. This is the essence of ESD.
186 Brown Weiss 1984 Ecology LQ 495-582; Weiss In Fairness to Future Generations 2.
187 Brown Weiss 1984 Ecology LQ 540; Weiss In Fairness to Future Generations 2; Tladi Sustainable Development in International Law 42.
188 The Brundtland Report 13. Also see Tladi Sustainable Development in International Law 42.
189 The Brundtland Report 13.
105
The Brundtland Report acknowledged that while "nature is bountiful … it is also fragile", hence certain thresholds "that cannot be crossed without endangering the basic integrity of the system" and "the survival of life on earth" should be put in place.190 Moreover, the Rio instruments provide reference to the principle of intergenerational equity.191 The Rio Declaration, for instance, requires that the "right to development" be achieved so that the "developmental and environmental needs of the present and future generations" are equitably met.192 Intergenerational equity has been captured further in multilateral environmental agreements. For example, the United Nations Framework Convention on Climate Change (herein the Climate Change Convention)193 invokes the principle of intergenerational equity in article 3.
By having the purpose of providing equity for future generations, the principle of intergenerational equity, as Tladi194 argues, imbues "a forward-looking approach" into the sustainability and development discourse. In this respect, a close relationship is created between the principle of intergenerational equity and the precautionary principle, which also adopts a forward-looking approach.195 The precautionary principle has been
190 The Brundtland Report 33 has to this effect adopted the WCED's proposed legal principles on intergenerational equity, inter alia that "states shall conserve and use the environment and natural resources for the benefit of present and future generations". See principle 2 of the proposed Legal Principles for Environmental Protection and Sustainable Development adopted by the WCED Experts Group on Environmental Law. Also see Annex 1 of the Brundtland Report 348 for a summary.
191 See for instance principle 3 of the Rio Declaration; Article 3(1) of the United Nations Framework Convention on Climate Change 31 Ilm 851 1992.
192 Although the Rio Declaration in principle 3 captures the character of the principle of intergenerational equity i.e. requiring "the right to development" to "equitably meet developmental and environmental needs of present and future generations", it nonetheless is different from the Stockholm Declaration and the Brundtland Report's formulation. Tladi Sustainable Development in International Law 42 succinctly captures it by stating that "principle 3 as formulated, may be interpreted as placing the 'the right to development' as the central concern, and not the environment, as in previous formulations.
Nevertheless, the principle further illustrates the centrality of the principle of intergenerational equity"
in the sustainability and development discourse.
193 Article 3 of the United Nations Framework Convention on Climate Change 31 Ilm 851 1992 is titled 'Principles'. It provides that the "parties should protect the climate system for the benefit of present and future generations of humankind".
194 Tladi Sustainable Development in International Law 43.
195 Freestone and Hey "The Origin and Development of the Precautionery Principle" 3-5; Cameron and Abouchar "The Status of the Precautionary Principle International Law" 29; Freestone "Implementing Precaution Cautiously: The Precautionary Approach in the Straddling and Highly Migratory Fish Stocks
106
incorporated into virtually all recent treaties and policy documents on the environment.196 Freestone and Hey197 note that the precautionary principle prevents environmental damage. However, the precautionary principle extends further and goes beyond preventative action. That is to say: although preventative action is applicable to known or foreseeable environmental damage, the precautionary principle requires "action even before there is full scientific evidence of the environmental harm".198 A classic formulation of the precautionary principle can be found in principle 15 of the Rio Declaration which establishes that:
In order to protect the environment, the precautionary approach shall be widely applied by states according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost- effective measures to prevent environmental degradation.199
In other words, the precautionary principle requires states to cease all developmental activity that could pose potential irreversible and long-lasting environmental harm, even where scientific facts concerning the environmental harm is inconclusive. Preventing the potential irreversible harm on the environment is also the purpose of ecological
Agreement" 287. The precautionary principle, like sustainable development has been widely debated.
For the purpose of relevance, this thesis will not delve into such debates. See however Cameron and Abouchar "The Status of the Precautionary Principle International Law" 29-52; Freestone
"Implementing Precaution Cautiously: The Precautionary Approach in the Straddling and Highly Migratory Fish Stocks Agreement" 287-325.
196 Freestone "Implementing Precaution Cautiously: The Precautionary Approach in the Straddling and Highly Migratory Fish Stocks Agreement" 287-290; Freestone and Hey "The Origin and Development of the Precautionery Principle" 3. The authors list as examples the United Nations Framework Convention on Climate Change 1992, Treaty Doc No. 102-38, 1771 U.N.T.S. 107; United Nations Agreement on Straddling and Highly Migratory Fish Stocks A/CONF.164/37 1995; Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa 30 ILM 773 (1551) 1991; and a host of other Conventions. Also see Kiss "The Rights and Interests of Future Generations and the Precautionary Principle" 27.
197 Freestone and Hey "The Origin and Development of the Precautionery Principle" 3-5; Freestone
"Implementing Precaution Cautiously: The Precautionary Approach in the Straddling and Highly Migratory Fish Stocks Agreement" 287-289.
198 Cameron and Abouchar "The Status of the Precautionary Principle International Law" 29-33; Freestone
"Implementing Precaution Cautiously: The Precautionary Approach in the Straddling and Highly Migratory Fish Stocks Agreement" 287-289.
199 Principle 15 of the Rio Declaration.
107
proportionality, a process employed to achieve ecological integrity, an outcome of ESD, which is discussed in the Fourth Chapter of this thesis.
The relationship between ESD and the precautionary principle can be discerned with ease.
Freestone200 asserts that the precautionary principle "occupies a central place in any realistic strategy" concerning development that is sustainable. ESD demands that humans be proactive not only in rehabilitating the harmed environment, but also in preventing the potential irreversible degradation of the environment.201 Hence, the precautionary principle requires states to implement measures to avert environmental harm when there is an elevated potential of environmental damage from a particular economic activity.202 The precautionary principle further requires states to implement measures that avert environmental damage in cases where an economic activity could result in irreversible or long-lasting damage to the environment.203 These precautionary measures ought to be implemented even where scientific knowledge concerning environmental damage is inconclusive. Hence, like ESD, the precautionary principle aims at protecting the environment for future generations. Thus, applying the precautionary principle, then becomes a process necessary for the realisation of ESD. To this end, the 1990, Bergen Ministerial Declaration, stipulates that in order to realise ESD:
policies must be based on the precautionary principle. Environmental measures must anticipate, prevent, and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as reason for postponing measures to prevent environmental degradation.204
200 Freestone "Implementing Precaution Cautiously: The Precautionary Approach in the Straddling and Highly Migratory Fish Stocks Agreement" 287-290. Also see Trouwborst Precautionary Rights and Duties of States 33.
201 Nollkaemper "What You Risk Reveals What You Value and Other Dilemmas Encountered in the Legal Assaults on Risk" 73-82.
202 Nollkaemper "What You Risk Reveals What You Value and Other Dilemmas Encountered in the Legal Assaults on Risk" 73-82.
203 Nollkaemper "What You Risk Reveals What You Value and Other Dilemmas Encountered in the Legal Assaults on Risk" 73-82.
204 Bergen Ministerial Declaration on Sustainable Development in the Ece Region, Un Doc. A/Conf 1990 para 7.
108
However, the Rio Declaration's formulation of the precautionary principle is somewhat different. In terms of the Rio Declaration, the obligation to take precautionary measures is constrained by cost effectiveness, and economic factors.205 Therefore one realises once again an uncomfortable compromise between environmental imperatives and economic concerns when it comes to environmental protection.206 The Rio Declaration's formulation of the precautionary principle lessens the importance placed on ESD. Thus, priority is moved away from environmental protection to conserving economies and their financial capability. Environmental protection only appears as an afterthought after economic and cost-effective factors have been given supremacy.
Of importance however is that intergenerational equity is not immune to criticism. The principal criticism against intergenerational equity stems from an ecocentric standpoint.
Burchill and Linklater207 note that ecocentrism requires that the environment be protected for its own sake and not just for the interest of human beings. From an ecocentric standpoint, "intergenerational equity and an anthropocentric approach is flawed, ethically", and is therefore not sufficient to provide effective protection to the environment.208
Ecocentrists argue that the motive for protecting the earth and environment must not be based on the duty humans owe to future generations, but rather on the duty humans owe to nature regardless of its benefit to humans.209 Fervent ecocentrists D'Amato and Chopra210 argue that an anthropocentric approach to environmental protection will result in less protection of the environment. Their argument is based on the assumption that
205 This can be deduced from principle 15 of the Rio Declaration which states that: “in order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities.”
206 See Tladi Sustainable Development in International Law 45.
207 Burchill and Linklater Theories of International Relations 254. Also see D'amato and Chopra 1991 Am J Int Law 21.
208 D'amato and Chopra 1991 Am J Int Law 21, 23; D'Amato 1990 The American Journal of International Law 191-195; Burchill and Linklater Theories of International Relations 254.
209 D'amato and Chopra 1991 Am J Int Law 23.
210 D'amato and Chopra 1991 Am J Int Law 21, 23. Also see Gillespie International Environmental Law, Policy, and Ethics 22; Burchill and Linklater Theories of International Relations 254.
109
intergenerational equity, as an anthropocentric means of environmental protection, will tolerate the destruction of any environmental species that is not of value to present or future human beings.211 This thesis accepts the validity of this argument and proceeds to note that ESD requires intergenerational equity to recognise that future generations have the autonomy to determine what their needs will be. The result being that the present generation should conserve the environment in its entirety, whether beneficial to humanity or not, such that the natural resources available to future generations are not limited. This is consistent with the term 'ecologically' sustainable development.
Therefore, a proper comprehension of intergenerational equity demands that humans protect and not destroy all natural species, be it for the benefit of the present generation or not. To this end, future generations are able to meet their own needs, inclusive of the needs the present generation did not foresee. Thus, this thesis notes that intergenerational equity promotes humanity's duty to protect the environment as part of ESD. Intergenerational equity is therefore essential to promoting ESD since it accepts the need for development within 'ecological' bounds, as opposed to anthropocentric needs.