Reconciling the Irreconcilable: Progress Toward ... - Papers.ssrn.com

Reconciling the Irreconcilable: Progress Toward Sustainable Development By Rebecca M. Bratspies A. Introduction In his 1931 Idaho lectures, Professor Manley O. Hudson opined that the history of his times could be written and assessed only from the “perspective which only half a century can bring.”1 From the vantage point of 75 years, half again as long as his prescribed half-century, Hudson’s lectures seem both prescient and tragic: prescient because he foretold so many of modern international law’s major developments; tragic because he completely missed the looming cataclysm of the Second World War. The League of Nations, which Hudson thought would spearhead a “great quickening of international thought and [] stimulation of cooperative effort,”2 and would thus be a harbinger of a new, more integrated, and more peaceful world, did not exactly live up to billing. The twentieth century’s legacy of war and brutality, and this new century’s short but bloody history make it difficult to imagine writing, as Hudson did, of “the progress we have made on organizing the world for cooperation and peace.”3 Yet scholars, citizens, and leaders still yearn for peace. Increasingly, their quest invokes a pax mercatoria as the basis for a commitment to lawmaking on a global scale.4 Hudson offered a progress narrative in which international legal organizations, led by the League of Nations, would assure peace and security to the peoples of the world. Although the post-modern world embodies so little of his optimistic belief in the capacity of human institutions to prevent violence and injustice,5

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M O. H, P  I O 5 (1932). Id. at 42. Id. Very similar rhetoric, now garbed in the cloak of economic liberalism, undergirds some of the more extravagant claims for a pax mercatoria in which the spread of a market economy under the banner of global economic integration will bring democracy and peace in its wake. See e.g., T L. F, T L   O T (1999). Hudson’s writing embodies his firm belief that he knew what progress was, and could identify it on the ground. In a post-modern context, the term progress is fraught with normative ambiguity,

Miller & Bratspies (Eds), Progress in International Law, pp. 813–834. © 2008 Koninklijke Brill NV. Printed in the Netherlands.

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Hudson’s lectures did accurately predict many of the institutional developments in international law. Hudson correctly fortold that the growth and development of international institutions like the Universal Postal Union, the International Bureau of Intelligence on Locusts and the International Labor Organization would mean that an ever-increasing number of problems were directed into these international channels, and affairs that previously had been “left to spasmodic and frequently casual activity … are now the subjects of continuous and sustained effort, for which new agencies exist, new methods have been proved, and definite aims are being pursued.”6 While Hudson certainly predicted that new issues would cross the international scene, he could not have anticipated that fin de siécle international public law would focus increasingly on the relationship between environmental degradation and economic development (sustainable or otherwise).7 Indeed, in 1931, these issues were barely a blip on the newly-invented radar screens.8 The International Joint Commission had just issued its report in the Trail Smelter dispute between the United States and Canada,9 and had largely rejected the United States’ claims that sulfur dioxide emissions from the smelter were polluting

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and many postmodern thinkers would reject the notion that there is or can be much agreement on what constitutes progress. Nevertheless, as David Kennedy points out, international law still clings to its shared orientation “to a past of sovereign states and a future of international law. The discipline looks forward, confident that we will arrive in the future with history at our side.” David Kennedy, When Renewal Repeats: Thinking Against the Box, N.Y.U. J. I’ L. & P. 335, 347 – 72 (2000). Indeed, international law’s various progress narratives are deeply ambivalent about “the direction progress takes and the terms with which it is marked.” Id. at 347. H, supra note 1, at 43. Sustainability has many different definitions, but clear contours for the notion are emerging. The Bruntland Report provided the most commonly used definition as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” Report of the World Commission on Environment and Development, G.A. Res. 42/187, 96th plen. mtg., U.N. Doc. A/RES/42/187 (Dec. 11, 1987). For a more detailed definition that fleshes out the economic, social, and environmental aspects of sustainable development, see Tim O’Riordan et al., The Evolution of the Precautionary Principle, in R  P P 9, 14 (Tim O’Riordan et al., eds., 2001). Regardless of the precise definition, sustainability is an attempt to merge the logic of development, which is predicated on continued exploitation of labor and natural resources, with that of the environment, which starts by assuming that natural resources are inherently scarce. For an interesting discussion of the origins of RADAR, see S S. S, T H   B  R (1986). The parties initially agreed to refer the dispute to the International Joint Commission, which made recommendations pursuant to Article IX of the Treaty Relating to Boundary Waters between the United States and Canada, U.S.-Gr. Brit., Jan. 11, 1909, 36 Stat. 2448; see generally T H  I L: L   T S A (Rebecca M. Bratspies & Russell A. Miller eds., 2006).


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the Columbia River and were injuring livestock and crops in Washington State.10 The Trail Smelter dispute was still a decade away from its groundbreaking 1941 Final Arbitral Ruling, which established sic utere tuo ut alienum non laedas11 and “the polluter pays” as foundational principles of international law.12 Although conflict over pollution from mining and industrial activities had been a growing area of social discord for decades,13 the link between environmental harms and industrial activities was not yet well-established.14 Moreover, the notion that disputes over the proper balance between economic development and protection of human or environmental health should be governed by law, let alone by international law, was still in its infancy. Explorations of the contours of a right to development would become a central issue only with widespread decolonization and the emergence of the Third World.15

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Id. Indeed water pollution from the smelter’s operations remains a source of ongoing controversy between the United States and Canada. See Neil Craik, Transboundary Pollution, Unilateralism and the Limits of Extraterritorial Jurisdiction: the Second Trail Smelter Dispute, in T H  I L, supra note 9; Michael Robinson-Dorn, The Trail Smelter: Is What’s Past Prologue? EPA Blazes a New Trail for CERCLA, 14 N.Y.U. E. L.J. 233 (2006); Austin Parrish, Trail Smelter Déjà vu: Extraterritoriality, International Environmental Law, and the Search for Solutions to Canada-U.S. Transboundary Water Pollution Disputes, 85 B U. L. R. 363 (2005). “One should use one’s own property in such a manner as not to injure that of another.” It was with the Trail Smelter decision that this nuisance principle took on the character of an international obligation. For a thorough exploration of the Trail Smelter Arbitration, see T H  I L, supra note 9. Of course, within the decade, Hudson, in his role as a Judge on the Permanent Court of Justice, directly confronted the question of equitable distribution of resources. See Diversion of Water from the River Meuse (Neth. v. Belg.), 1937 P.C.I.J. (ser. A/B) No. 70, at 76 ( June 28) (Hudson J., separate opinion). For a discussion of this case, see Baker in this volume. J D. W, S S  N A: T P  T P (2000); D M, S W: A C, M A P   C, 1890 – 1924 (2000). Indeed, in the subsequent iterations of the Trail Smelter Arbitration, Canada argued that the smelter’s emissions caused no harm. See Trail Smelter Final Arbitral Decision (1941), reprinted in T H  I L, supra note 9 at app. Some characterize the embrace of “sustainable development,” particularly by the Bretton Woods Institutions, as merely a new, more intrusive set of reasons justifying intervention into the management of developing countries, or even a new form of colonialism. See e.g. B R, I L  B: D, S M  T W R 114 – 34 (2003). To the extent this concern has resonance, globalization – and in particular the spectacular rise of transnational corporations—begs the question of who is doing the colonizing. The answer may not be states.


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Seventy-five years later, this situation has changed dramatically. There is a growing consensus that human activities are threatening the integrity of the earth’s ecosystems, and that environmental degradation is among the most serious threats to global stability.16 Indeed, the United Nation’s Millennium Declaration identifies “respect for nature” as one of the fundamental values for the twenty-first century (along with freedom, equality, solidarity, tolerance and shared responsibility),17 and environmental sustainability was identified as one of the eight Millennium Development Goals.18 As a result, no contemporary account of progress in international organization can be complete without an assessment of the international community’s stumbling progression toward sustainability. This chapter measures that progression against Hudson’s definition of progress as the “building of institutions which promise to serve the needs of future generations.”19 The analysis measures international moves toward sustainable development against three different conceptions of progress: rhetorical, conceptual, and material.

B. The Looming Environmental Crisis While it took more than a decade after Hudson’s death for the United Nations to explicitly recognize a “rising [environmental] crisis of worldwide proportions,”20 hints that international law would be called on to respond to a looming environmental crisis appeared much earlier. As early as the 1880s, the Bering Fur Seals dispute revealed the potential for disputes over the conservation of living resources to escalate into confrontations with the potential to breach the world’s peace.21

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The Secretary-General, High-level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, 12, 53-54, U.N. Doc. A/59/565 (Dec. 2, 2004). United Nations Millennium Declaration, G.A. Res. 55/2, U.N. GAOR, 55th Sess., U.N. Doc. A/Res/55/2 (Sept. 18, 2000). United Nations Millennium Development Goals, available at http://www.unmillenniumproject .org/index.htm. H, supra note 1, at 122. U.N. Econ. & Soc. Council, Report of the Secretary General on the Problems of the Human Environment, ¶ 1, U.N. Doc. E/4667 (May 26, 1969). Citing destruction of breeding stocks and wasteful killings that were threatening the survival of the Bering fur seals, the United States attempted to extend its jurisdiction beyond the traditional 3 mile territorial waters in order to conserve the seal population. The U.S. Congress passed a series of laws prohibited the taking of Bering fur seals in the waters “adjacent to their breeding grounds” on U.S. territory, except under certain, narrowly specified circumstances. See A Resolution More Efficiently to Protect the Fur Seal in Alaska, S. Res. 22, 40th Cong., 15 Stat. 348


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The Lac Lanoux dispute, which began in 1919 and lasted for decades,22 put competing uses of scarce natural resources onto the international agenda, and the Trail Smelter dispute, which similarly stretched over decades forced international thinkers to confront the problem of transboundary pollution. Moreover, the Trail Smelter, Lac Lanoux and Bering Sea Fur Seals arbitrations all became international incidents precisely because the environmental effects of human economic activities transcended state jurisdictional boundaries. Viewed retrospectively, these early cases were already hinting that it would not be enough for individual states to make sustainable decisions within their domestic realms. All of these disputes raised questions of how the international legal order should respond to state and private conduct that resulted in environmental degradation, both within states and in the global commons, and all can be read as affirming that customary international law required that states cooperate to resolve such issues.23 Thus, when Hudson gave his 1931 lectures, the international community was just beginning to grapple with how to include environmental disputes into a system of international organization intended to preserve the world’s peace. Modern international environmental regimes are both the logical emanation from these early arbitral decisions and a sharp break with them. While the Bering Fur Seals, Lac Lanoux, and Trail Smelter arbitrations certainly laid a foundation that developed into modern international environmental law, one must be careful not to project a modern environmental consciousness onto these incidents and their resolution.24 Certainly the participants did not frame the disputes as attempts to vindicate international environmental rights and probably would not have characterized their actions as creating a new body of international law.25

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(Mar. 3, 1869). When it began enforcing this ban in 1886, United States coast guard vessels applied this law to waters 60 miles from land to seize British sealing vessels, in the process precipitating an international incident that was ultimately the subject of an international arbitration. See Bering Sea Fur Seals Arbitration (Gr. Brit. v. U.S. 1893), reprinted in 1 J B M, H  D   I A    U S H B  P 755 (1898); see also P S, P  I E L 563 (2nd ed. 2003). The arbitration led to the relatively successful 1911 Convention respecting Measures for the Preservation and Protection of the Fur Seals in the North Pacific Ocean, T.S. No. 564, 104 B.S.P. 175 (1911). Affaire du Lac Lanoux, XII United Nations Reports of International Arbitral Awardsat 285 – 317, Lake Lanoux Arbitration (Fr. v. Spain), translated in 24 I.L.R. 101 (1957). For an exploration of customary law, see Guzman and Meyer in this volume. The same holds true for Hudson’s separate opinion in the Muese case, supra note 12. See Baker in this volume. For example, the American Journal of International Law cited with approval President Roosevelt’s proposal that the United States itself exterminate the fur seals as a means of resolving the ongoing dispute. Editorial Comment, 1 A. J. I’ L. 727, 747 (1907). However, other contemporary


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In their day, these disputes were conventional clashes between Westphalian sovereigns engaged in state-to-state interactions over national prerogative. Rather than as a new vision for the possibilities embodied by international law, these arbitrations were very much in line with existing visions of international law as a relatively ad hoc process mediating the relationship between states.26 That said, the arbitrations did introduce the threads of conservation, pollution prevention, and conflicting claims to common resources into international legal discourse. These threads would later coalesce into a more multilateral vision of international law’s role in environmental protection, and they certainly provide a context for the detailed modern international environmental regimes that today cover a broad range of environmental issues. By 1962, the UN General Assembly had already begun weaving together conservation and economic development—two of the central strands in what became sustainable development—when it called on states to integrate natural resource protection measures into their economic development plans.27 Ten years later, the Stockholm Convention on the Human Environment28 solidified these links even further by concluding that underdevelopment and poverty were as much root causes of environmental problems as were overdevelopment and waste.29 Without using the term sustainable development, the Stockholm Convention laid the foundation for integrated consideration of environment and development issues30 and “provided a focus for new environmental tasks that were likely

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accounts make an eloquent plea for conservation of the species, see J. Stanley Brown, Fur Seals and the Bering Sea Arbitration, 26 J. A. G. S’ 327 (1894). The title of this chapter, “Reconciling the Irreconcilable” comes from the conclusion of that article. Id. at 372. For a thorough study documenting why international adjudication is of limited value for dealing with environmental disputes, see C R, T P S  I E D: A P A (2000) (warning against naiveté about the ability of adjudication to resolve environmental problems). Economic Development and the Conservation of Nature, G.A. Res. 1831(XVII), U.N. GAOR, 17th Sess., Supp. No. 17, U.N. Doc. A/RES/1831 (XVII) (1962). Some have characterized this declaration’s call for assistance to help developing countries incorporate environmental concerns into economic planning as a harbinger of the “common but differentiated responsibility.” Alhaj, B. M. Marong, From Rio to Johannesburg: Reflections on the Role of International Legal Norms in Sustainable Development, 16 G. I’ E. L. R. 21, 25 (2003) (citing sources). U.N. Conference on the Human Environment, Stockholm, Swed., June 5 – 16, 1972 Declaration, U.N. Doc. A/CONF.48/14 (June 16, 1972), reprinted in 11 I.L.M. 1416 [hereinafter Stockholm Declaration]. Development and Environmental Report and Working Group Papers of a Panel of Experts Convened by the Secretary-General of the United Nations Conference on the Human Environment, 6 para 1.5 (1972). Stockholm Declaration, supra note 28 at pmbl. Principle 13 provides for the integration of environment and development in decision-making.


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to fall to international organizations.”31 Today, this integration of environmental and economic concerns forms the cornerstone of sustainable development.32 UNESCO’s 1968 Intergovernmental Conference of Experts on the Scientific Basis for Rational Use and Conservation of the Resources of the Biosphere33 was the first major international initiative to confront the global nature of environmental problems like pollution, deforestation, and destruction of habitat. The 1972 Stockholm Convention picked up on these themes, and is generally considered as marking the beginning of international institutional engagement with environmental protection.34 The Convention produced the Declaration of the United Nations Conference on the Human Environment (commonly called the Stockholm Declaration) intended to respond to concerns about “dangerous levels of pollution in water, air, earth and living beings; major and undesirable disturbances to the ecological balance of the biosphere; destruction and depletion of irreplaceable resources”35—the very same environmental problems that had been addressed piecemeal in the earlier arbitrations. Since Stockholm, the United Nations and other international organizations have consistently viewed environmental questions as global and systemic challenges, rather than the stuff of piecemeal bilateral relationships.36 As a result, multilateral treaties and declarations became the legal instrument of choice for addressing these

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Brian Johnson, The United Nations’ Institutional Response to Stockholm: A Case Study in the International Politics of Institutional Change, 26 I’ O. 255, 256 (1972). See e.g., International Law Association, New Delhi Declaration of Principles of International Law Relating to Sustainable Development, Res. 3/2002 (Apr. 6, 2002), available at http://www.cisdl .org/pdf/ILAdeclaration.pdf. See also Edward B. Barbier, The Concept of Sustainable Economic Development, 14 E’ C. 101, 103 (1987) (defining sustainable economic development). UNESCO, Final Report of the Intergovernmental Conference of Experts on the Scientific Basis for Rational Use and Conservation of the Resources of the Biosphere, held at UNESCO House, Paris, Sept. 4 – 13, 1968, UNESCO Doc. SC/MD/9 (Jan. 9, 1969), reprinted in UNESCO, Use and Conservation of the Biosphere 191 (1970). Indeed, in its 1968 resolution supporting the conference, the UN Economic and Social Council identified the main objectives of the Convention as “creat[ing] the basis for comprehensive consideration within the United Nations of the problems of the human environment” and focusing governmental and civil society’s attention on these problems. ECOSOC, Questions of Convening an International Conference on Problems of the Human Environment, Res. 1346, 45 U.N. Doc E./4561/Add.I at 19 (1968), available from http://www.un.org/ecosoc/docs/ resdec1946_2000.asp. Stockholm Declaration, supra note 28 at para. 3. There are, of course, exceptions. The Gabçikovo-Nagymoros dispute, for example, involved a bilateral environmental issue. Case Concerning the Gabçikovo Nagymoros Project (Hungary v. Slovakia) 1997 I.C.J. 7, 110 (Sept. 27). Nevertheless, Judge Weeramantry used the case as a springboard for a rich discussion of sustainable development. Id. at 97 – 110 (separate opinion of J. Weeramantry).


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questions and have been the mainstay of international environmental law ever since. The recognition that it is possible for humans to “do massive and irreversible harm to the earthly environment on which our life and well-being depend”37 must be counted a form of progress in itself. The challenge, of course, is progressing even further and moving from identifying the phenomenon to developing an effective response.38 Unfortunately, limited as they are to the lowest common denominator of sovereign consent, the myriad multilateral environmental regimes largely fail to accomplish this task. From the very beginning it was clear that any translation of these environmental goals into behaviors would have to strike a delicate balance not only between environmental protection and economic development, but also between state sovereignty and global environmental interests. Principle 21 of the Stockholm Convention reflected a careful balancing act between dynamic and conflicting pressures: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.39

Indeed, the Declaration was deeply embedded in its decolonization context, and explicitly linked problems of underdevelopment as well as those of overdevelopment with environmental degradation.40 The primary answer contributed by international law has been the concept of sustainable development. The rest of this chapter tests the discourse and practice of sustainable development against the notion of progress. This exploration is divided into two parts: first, an assessment of whether widespread embrace of the goal of sustainable development itself represents progress—whether there is normative value to a coherent international vision that posits a connection between economic activities and a safe and wholesome environment; and second, this chapter provides an analysis of how we might measure actual progress towards

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Stockholm Declaration, supra note 28 at para. 6. R, supra note 26. Stockholm Declaration, supra note 28, at princ. 21. This language foreshadowed the notion of “common but differentiated responsibility” that underscores many of the more recent multilateral environmental agreements. Stockholm Declaration, supra note 28, at para. 4. For an in depth contemporaneous perspective of the lead up to the Stockholm Convention, see Louis B. Sohn, The Stockholm Declaration on the Human Environment, 14 H. I’ L. J. 423 (1973). For an alternative perspective, see R, supra note 15, at 114 – 17.


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the goal of sustainability through assessing the international community’s ability to account for the needs of future generations, and to respond to the challenges of economic globalization.

C. Rhetorical Progress: Embracing the Concept of Sustainable Development The 1992 United Nations Conference on the Environment and Development41 (UNCED or the Rio Conference) brought environmental issues into the international mainstream and focused global attention on the unsustainable nature of current human activities. The Rio Declaration echoed the posture struck twenty years earlier in the Stockholm Declaration: recognizing that human activity was undermining the integrity of these natural systems on which human life and society depend while also affirming that development decisions are within the sovereign competence of states. Despite a need to finesse the conflict between pressure from developed countries for stringent environmental restrictions and demands from developing countries for adherence to the Westphalian principle of non-interference, Rio marked a transition point—the point at which sustainability became a tenet of environmental law’s central narrative and a new watchword in international environmental discourse. Sustainable development—the satisfaction of human needs in a fashion that does not impede the ability of future generations to also satisfy their needs42—was the compromise between the two positions. The term was ambiguous enough to satisfy all participants in the international dialogue. Sustainable development thus became the internationally sanctioned decisionmaking framework for corporate, state and organizational actors—a global consensus for developing global solutions to environmental problems.43 A wealth of multilateral environmental agreements covering

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U.N. Conference on Environment and Development, June 3-14, 1992, Rio Declaration on the Environment and Development, Annex I, at 3, U.N. Doc. A/CONF.151/26/Rev.1 (Vol.I) (1993) [hereinafter Rio Declaration]. W C  E  D, O C F 42 (1987). This is the definition of sustainable development most commonly used. A situation is unsustainable when natural capital is depleted more rapidly than it can be replenished. Thus, at a minimum, sustainability requires that human activity not exceed the regenerative rate for natural resources and capacities. See Agenda 21: Program of Action for Sustainable Development, ch.30, U.N. Doc. A/ CONF.151/26, Rev.1 (June 14, 1992); see also P S, P  I E L 252-65 (2d ed. 2003) (presenting the development of the concept of sustainable development in international environmental law).


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everything from access to environmental information44 to greenhouse gas emissions45 to persistent organic pollutants46 purport to advance the goal of sustainability. Sustainable development is a central commitment of the U.N. Millennium Development Goals,47 and was the focus of the 2002 Johannesburg World Summit on Sustainable Development.48 Embracing these goals, the World Bank instituted a Secretariat of Sustainable Development49 tasked with “manifesting the Bank’s commitment to socially and environmentally responsible development.”50 The Bank’s new development strategy views economic growth as embedded in social balance and environmental sustainability.51 The OECD similarly established a Development Cooperation Directorate charged with facilitating collaboration between member and non-member countries over environmental issues.52 The recently established United Nations Division for Sustainable Development and the affiliated Commission on Sustainable Development similarly reflect that sustainability has become a basis for policy development, program design, and delivery. These programs are intended to integrate sustainable development into international, regional, and local policymaking,53 and thus spearhead progress towards sustainability. Along similar lines, the U.N. General Assembly declared the decade from 2005 to 2014 to be a decade of education for sustainable development.54

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Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, June 25, 1998, 38 I.L.M. 517 (hereafter Aarhus Convention). U.N. Framework Convention on Climate Change, May 9, 1992, S. Treaty Doc. No. 102 – 38, 1771 U.N.T.S. 107; Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, 37 I.L.M. 22. United Nations Environment Programme Stockholm Convention on Persistent Organic Pollutants, May 22, 2001, 40 I.L.M. 532. U.N. Millennium Development Goals, available at http://www.un.org/millenniumgoals. See U.N. Report of the World Summit on Sustainable Development, Johannesburg, S. Afr., Aug. 26-Sept. 4, 2002, U.N. Doc A/CONF.199.20. See World Bank, Environmentally and Socially Sustainable Reference Guide, available at http:// lnweb18.worldbank.org/essd/sdvext.nsf/43ByDocName/WorldBankSustainableDevelopment ReferenceGuideText /$FILE/ESSDReferenceGuideText.pdf. Id. Id. at 5. Information about the OECD Development Cooperation Directorate is available at http:// www.oecd.org/about/0,3347,en_2649_34421_1_1_1_1_1,00.html. See United Nations Department of Economic and Social Affairs, Commission on Sustainable Development, http://www.un.org/esa/sustdev. See G.A. Res. 57/254, ¶1, U.N. Doc. A/RES/S7/254 (Dec. 20, 2002). UNESCO is the leading agency in this decade of education. See UNESCO, http://portal.unesco.org/education/en/ ev.phpURL_ID=27234&URL_DO=DO_TOPIC&URL_SECTION=201.html.


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Many now argue that sustainable development has become a norm of international law.55 Does this coalescing rhetoric have normative import? Some argue that sustainable development is nothing more than rhetoric—pretty sounding lingo bereft of concrete meaning and incapable of shaping real-world choices.56 Others suggest that sustainable development functions as a “bait and switch”—distracting attention from the continued exploitation of environments and workers while resulting in little or no change in exploitative behaviors.57 Though both of these objections to sustainable development have weight, they significantly underestimate the normative impact that rhetoric can have on social expectations, and on state and private behaviors. For this reason, I view the near universal embrace of sustainable development as a critical component of international organization to be real progress. It reflects a broad international recognition that ecosystems are not co-extensive with the jurisdictional reach of nation-states,58 and that international cooperation will be necessary “to conserve, protect and restore the health and integrity of the Earth’s ecosystems.”59 As such, this rhetoric is the first critical step of progress towards an environmentally sustainable global society. Notwithstanding impressive progress toward creating a substantial body of normative international law (hard and soft) embracing sustainable development, that progress has not yet translated into slowing the overexploitation of natural resources—nor has it stemmed the production of toxic and hazardous pollutants. Environmental regimes are notoriously weak, and a wide gulf remains between theory and practice. The poorly understood complexity of environmental systems, coupled with the tangled relationship between economic development, social development, and environmental protection has so far meant that sustainable use of resources eludes policymakers. The unfortunate lesson is that progress

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See S J: R E, S  E L (Marie-Claire Cordonier & C.G. Weeramantry 2005) (making this argument); but see Alhaji B.M. Marong, From Rio to Johannesburg: Reflections on the Role of International Legal Norms in Sustainable Development, 16 G. I’ E. L. R. 21, 33 – 34 (2003) (arguing that sustainable development is not a norm of customary law). See e.g. A G, T I  P: U D  I L  P (2001). As Baird Callicott and Karen Mumford point out, “everyone agrees that sustainability is a good thing” but the term is “at grave risk of being co-opted by people primarily concerned about other things.” J. Baird Callicott & Karen Mumford, Ecological Sustainability as a Conservation Concept, 11 C. B. 32 (Feb. 1997). See T H  I L, supra note 9; Rebecca Bratspies, Finessing King Neptune: Fisheries Management and the Limits of International Law, 25 H. E. L. R. 213 (2001). Rio Declaration, supra note 41, princ. 7.


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in negotiating legal documents, though an important step, is not the same thing as achieving material progress in protecting the earth’s threatened ecosystems.

D. Beyond Words—Progress in Implementing Sustainable Development If there is a hierarchy of progress toward sustainable development, the first level surely involves rhetorical embrace of the concept. As described above, there has already been significant progress on this front. Unfortunately, implementation remains scant—the international community has thus far been long on promises, but short on action. While this situation can be ascribed, in part, to the normative indeterminacy of the term “sustainable development” itself,60 there has also been an unwillingness to make and live with the choices necessary to achieve real progress toward this goal. Moreover, as the Bruntland Commission pointed out, there is a mismatch between the scale of environmental law—which is bounded by the territorial limitation of states and tends to focus on specific sectors or species—and the world’s pressing global and integrated environmental challenges61 that “endanger[] the Earth’s capacity to sustain current and future generations.”62 Looking beyond the language of multilateral environmental agreements, a second measure of progress toward sustainable development must examine the degree to which policymaking actually includes the interests of future generations,63 because that inclusion marks yet another step towards “ensur[ing] that our small planet is passed over to future generations in a condition which guarantees a life of human dignity for all.”64 This is the kind of norm internalization65 60

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Sustainable development obliges states to balance human and economic development with conservation and preservation of the environment, but does not dictate what that balance should be. For an exploration of this point, see Rebecca Bratspies, Rethinking Decisionmaking in International Environmental Law: A Process-Oriented Inquiry into Sustainable Development, 32 Y J. I’ L. 369 (2007). Our Common Future, supra note 42 at 330 – 34. Millennium Ecosystem Assessment, Living Beyond our Means: National Assessments and Human Well-Being 3, available at http://www.millenniumassessment.org/en/BoardStatement .aspx (follow Download Now hyperlink) (2005). Lothar Gundling, Our Responsibility to Future Generations, 84 A. J. I’ L. 207, 208 (1990) (arguing that sustainable development “is to be understood as development that takes into account not only the needs and interests of the present generation, but also of generations to come.”) Nairobi Declaration on the State of the Worldwide Environment, UN Environmental Programme, 10th Sess., Agenda Item 4, U.N. Doc. UNEP/GC.10/INF.5 (1982) at para. 10, reprinted in 21 I.L.M. 676. For an important account of the norm internalization process, see Harold Hongju Koh, Why Do Nations Obey International Law?, 106 Y L.J. 2599 (1997).


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that Hudson would readily have identified as progress. Finally, a third measure of progress involves assessing the international community’s willingness to confront these conflicts in a world carved into public and private law spheres, and to respond to the root challenge to sustainable development posed by economic globalization. As David Kennedy points out, it is a mistake to view questions of international governance as separate from the global market economy.66 I. Process as Progress: Accounting for Future Generations Janet Koven Levit describes international lawmaking as a “dynamic, iterative process” with deep theoretical roots.67 How does such a process internalize norms and create shared reference points for the next iteration of lawmaking? Hudson answered that question by identifying the “building of institutions which promise to serve the needs of future generations”68 as the sin qua non of progress in international organization. The Stockholm Declaration, which recognized “a solemn responsibility to protect and improve the environment for present and future generations,”69 embraced this vision of progress in an environmental context. The 1987 Bruntland Commission took this notion one step further when it highlighted intergenerational equity—the imperative that current generations pass to future generations an environment of a quality that permits them to meet their own needs.70 Even the International Monetary Fund recognized that sustainability, taken seriously, requires that the needs of future generations be part of any decisional calculus.71 Intergenerational equity stems in part from a vision of the state as a partnership between past, present and future generations.72 This vision has been embraced, albeit cautiously, by some areas of international law. For example, Article 3(1) of the Framework Convention on Climate Change identifies as a basic principle that 66

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David Kennedy, The Forgotten Politics of International Governance, 2 E. H. R. L. R. 117 (2001). A necessary part of any such analysis is consideration of the central role played by transnational corporations—non-state actors that often wield the power of states but whose activities remain outside the current international legal order. Janet Koven Levit, Sanchez-Llamas v. Oregon: the Glass is Half Full, 11 L & C L. R. 29, 41 (2007). For a complete description of the New Haven School approach, see H D. L & M S. MD, J   F S (1992). See also Harold Hongju Koh, Transnational Legal Process, 75 N. L. R. 181, 183 (1996). H, supra note 1, at 122. Stockholm Declaration, supra note 28, princ. 1. Our Common Future, supra note 42. IMF, Fiscal Dimensions of Sustainable Development, Pamphlet 54 (2002) at 1, available at http://www.imf.org/external/pubs/ft/pam/pam54/pam54.pdf. E B, R   R  F 139 – 40 (1790), quoted in E B W, I F  F G (1988).


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“[t]he Parties should protect the climate system for the benefit of present and future generations of humankind.”73 At the International Court of Justice, Judge Weeramantry’s separate opinions in the Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway),74 and Gabcikovo Nagymoros,75 and his dissent in Nuclear Tests (New Zealand v. France)76 explore the need to consider future generations as participants in sustainable development. Nevertheless, international law struggles with how to account for the interests of future generations and for the costs they will bear as they reap the results of risks sown in the past and the present.77 Most scholars characterize intergenerational equity as a component of sustainable development.78 Other voices argue strenuously against the very idea of intergenerational equity.79 It is admittedly a tough sell to convince the public to incur costs today in order to accrue benefits to the distant future,80 and such an analysis can be fraught with ambiguity. For example, through strategic selection of a

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U.N. Framework Convention on Climate Change, supra note 45, art. 3, para. 1. In his separate opinion, Judge Weeramantry referred to intergenerational equity and specifically to “the concept of wise stewardship [of natural resources] … and their conservation for the benefit of future generations.” Maritime Delimination in the Area between Greenland and Jan Mayen (Den. v. Nor.), 1993 I.C.J. 38, 241 – 43 (June 14) (separate opinion of Judge Weeramantry). Gabçikovo Nagymoros, supra note 36. In Nuclear Tests 1995, Judge Weeramantry characterized the issue before the court as raising “as no case before the court has done, the principle of intergenerational equity—an important and rapidly developing principle of contemporary environmental law.” Request for an Examination of the Situation in Accordance With Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Test Cases (New Zealand v. France), 1995 I.C.J. 288, 341 (Sept. 22) (dissenting opinion of Judge Weeramantry). He goes on to note that “The court has not thus far had occasion to make any pronouncement on this rapidly developing field. This case presents it with a pre-eminent opportunity to do so as it raises in pointed form the possibility of damage to generations yet unborn.” Id. For an in depth exploration of this issue, see W, supra note 72. See e.g., Phillipe Sands, Environmental Protection in the Twenty-First Century: Sustainable Development and International Law, in E L,  E  S D (Richard L. Revesz et al., eds.) 369, 374 (2000); see generally, I L  S D: P A  F C (Alan Boyle & David Freestone eds.) 8 – 16 (1999); John C. Dernbach, Sustainable Development: Now More Than Ever, 32 E’ L. R. 10,003 (2002). Opposition comes both from market-based classical economists and from conservation biologists. The former believe that the sum choices of value-maximizing individuals represent the public good, and thus ideas of intergenerational equity are wrongheaded. The latter bristle at the anthrocentric vision that views the natural and biological resources of the earth through a lens of human development, with little or no attention to the inherent rights of other creatures. See Cass Sunstein, On the Divergent American Reactions to Terrorism and Climate Change, 107 C. L. R. 553 (2007).


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“social rate of time preference”81 discount rate, a policymaker can dramatically skew the resulting analysis.82 The larger the discount rate, the more the assessment values those costs and benefits incurred in the near term rather than costs and benefits incurred in the future. By selecting a lengthy time period or a high discount rate, it is possible to argue that even modest current expenditures that would have dramatic future benefits do not make sense.83 Recent debates over measures to avoid climate change have turned on different discount rates. In 2007, the British Government issued the Stern Review on the Economics of Climate Change,84 which described large potential losses from global warming and urged immediate and significant action to avert those losses. One of the Report’s central conclusions was that “the benefits of strong and early action far outweigh the economic costs of not acting.”85 These recommendations dramatically contradicted earlier recommendations that called for only modest investment to slow climate change in the near term, with more significant investments in the medium and long term.86 The different analyses and recommendations

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An assumption built into this calculation is that future generations will be wealthier, and thus will not value a given unit as much as the present generation. See, William R. Cline, Discounting for the Very Long Term, in D  I E 131, 132 (Paul R. Portney & John P. Weyant eds., 1999). For a critique of this assumption, see Partha Dasgupta et al., Intergenerational Equity, Social Discount Rates, and Global Warming, in D  I E supra at 51. Of course, this assumption ignores intra-generational effects—the fact that poor people and poor countries will suffer first and most from the effects of climate change while the benefits of not altering consumption patterns to avoid that outcome accrue predominantly to the wealthy. See Amy Sinden, In Defense of Absolutes: Combating the Politics of Power in Environmental Law, 90 I L. R. 1405 (2005). See also Sinden in this volume. A zero social discount rate would treat costs and benefits to future generations into the indefinite future equally with present generations, while a positive social discount rate means that the costs or benefits that accrue to future generations are reduced or “discounted” compared to those borne by the present generation. For an explanation, see D  I E (Paul Portney & John Weyant, eds., 1999). For a critique of discounting, see F A & L H, P: O K  P  E   V  N (2004). This cost-benefit argument is typically buttressed by the philosophical claim that we cannot know the conditions of future generations, nor can we assume that they share our conception of the good. See e.g., Martin P. Golding, Obligations to Future Generations, in R  F G (Ernest Partridge, ed., 1980). Her Majesty’s Treasury, Stern Review: The Economics of Climate Change (2006), online at http://www.hm-treasury.gov.uk/independent_reviews/stern_review_economics_climate _change/stern_review_report.cfm. Id. at Summary of Conclusions, at 1. See e.g., David L. Kelly & Charles D. Kolstad, Integrated Assessment Models For Climate Change Control, in I Y  E  R E 1999/2000: A S


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were driven, in part, by the selection of differing discount rates in response to different weightings ascribed to intergenerational equity. *** Overall, despite oft-repeated concerns for intergenerational equity, this is an area where progress has been halting. Conceptually, the lack of intra-generational equity poses a fundamental challenge to claims for inter-generational equity.87 Practically, the challenges of actually incorporating intergenerational equity into decisionmaking are substantial, and there have been few serious attempts to allocate resources based on genuine intergenerational equity. The simplicity of the idea has not facilitated its implementation. Intergenerational equity has instead been perceived more as a slogan, or at best a moral duty towards future generations rather than as an imperative for transforming decisionmaking to include their voice by proxy. II. Material Progress—Environmental Globalization Global trade has created a growing demand for natural resources—a demand that is coupled with a shrinking resource base. Incompatible imperatives compete against a backdrop of increased international environmental obligations, which have expanded in both nature and scope since Stockholm. These obligations create an ambitious international public agenda at the same time that deregulation of a growing private sector seems to compromise the ability of states to achieve such an agenda. Economic globalization, with its mobile capital and transnational actors, has weakened the traditional public policy levers for shaping markets and societies, whether or not accompanied by the much heralded “retreat of the state.”88 Deregulation, advances in technology and communications, and the development of a global capital market have concentrated power in the hands of global firms and corporate alliances, which now emerge as a rival power base to states.89

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 C I (Henk Folmer & Tom Tietenberg, eds. 1999). The Bush Administration stands with this latter camp claiming that global warming, if it exists at all, will have only modest effects that justify only minimal, voluntary investments. Gundling, supra note 63 at 211 (1990)(making this point); see also A C, W  F (2003) (detailing the relationship between globalization and inequality). See e.g. S S, T R   S (1996). For an exploration of how globalization is reshaping international law, see Philip Alston, The Myopia of the Handmaidens: International Lawyers and Globalization, 8 E. J. I’ L. 435 (1997). See Commission on Global Governance, Our Global Neighborhood 3 (1995).


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At precisely the moment that global governance needs to exert control over how products are designed, manufactured, transported, and consumed to promote sustainability, the political sphere is ceding ever more ground to an abstraction termed “the market.” Indeed, “the market” has somehow become an inevitable background assumption, invisibly limiting and shaping discourse about sustainable development without a full exploration of the consequences or acceptability of those limits. The rhetoric of free trade and the global market has become so pervasive that disentangling the question of sustainable development has become extremely difficult, yet actual progress toward sustainability will only happen if the assumptions that undergird that rhetoric are examined for their (un)sustainable consequences, what Upendra Baxi calls “the inevitable contradiction between the notions of a ‘people-centered development’ and the colossal hegemony of newly emergent technomonopolies.”90 The central question is whether sustainable development must accommodate itself within the globalized free market or whether that free market will exist within a sustainable paradigm. Truly sustainable practices can happen only under the latter circumstance. The market can exist in any number of configurations, some of which are more conducive to sustainable development than others. There is, unfortunately, no reason to think that absent deliberate choices on the part of states, both individually and as a community, that economic globalization will produce a market that promotes sustainability, or that can even co-exist with it. Choices must be made, and if the community of states does not make those choices on a global scale, the sum of private choices by private actors will do it for them. The question thus becomes who will shape the new global order? Will that result in anything Hudson would recognize as progress? Challenges like global warming illustrate the incongruity between the scope of problems and the international legal tools available for their resolution. Responding to these challenges will require expanding the global imagination about the relationships between formally public and formally private law, and between states and markets. National efforts to address these issues cannot be effective unless they are part of a global process that reflects the geographic and biological scope of the problem.91 No such process or organization currently exists in the environmental context, though more and more environmental disputes fall, at least tangentially, within the purview of the most notable example of such a wide-reaching organization—the World Trade Organization.

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Upendra Baxi, “Global Neighborhood” and the “Universal Otherhood”: Notes on the Report of the Commission on Global Governance, 21 A 525, 532 (1996). For a passionate argument of this point, see McCaffrey in this volume.


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Even before the WTO came into existence, Agenda 21 explicitly recognized the link between an “appropriate” international trade regime and sustainable development.92 The problem is that a trade regime “appropriate” for nurturing sustainable development is not necessarily a trade regime devoted to increasing “free trade.” Economic globalization creates pressure for centralizing all kinds of regulatory decisions in order to facilitate what is called “free trade.” One effect of the move towards centralization is a shift in the locus of decision away from the state to the WTO. The WTO, however, does not have the goals of sustainable development as a central part of its mandate or mindset. Instead, at the same time that the WTO aims for the “substantial reduction of tariffs and other barriers to trade”93 and prohibits quantitative restrictions,94 some environmental conventions employ trade measures as their primary means of enforcement. This tension between two central norms of modern international law is emblematic of the wider concerns about fragmentation in international law.95 A response to this dilemma has been support for the notion of “fair trade.” Forcing environmental disputes into the language of “fair trade” is an awkward fit. While states that do not comply with environmental obligations may gain a competitive advantage,96 and unsustainable exploitation of natural resources may compromise free trade, those objections are really beside the point. The primary objections to unsustainability are the threats such conduct poses for human survival, welfare and dignity, and for the ecological stability of the earth’s ecosystems, not the economic advantage the culpable party garners. *** In today’s globalizing world, the line between those concerns within the purview of the nation state and those properly addressed by the community of states as a whole becomes ever more blurred. Drugs, terror, pollution—increasingly these and other issues of global significance challenge the very notion that a distinction can be drawn between the two realms. 97 While the challenges are increasing perceived 92 93 94 95

96 97

Agenda 21, ch.2, supra note 43. General Agreement on Tariffs and Trade, preamble, third paragraph. Id. at art. XI. See e.g. International Law Commission, Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law, ¶ 450, U.N. Doc A/CN.4/L.682 (Apr. 13, 2006) (finalized by Martti Koskenniemi). See Sinden, in this volume. For an in depth exploration of this question in the context of global warming, see Hari Osofsky, The Geography of Climate Change Litigation: Implications for Transnational Regulatory Governance, 83 W. U. L.Q. 1789, 1813–18 (2005); Hari Osofsky, The Geography of Climate Change Litigation Part II: Narratives of Nation States and Thirdspaces, available at http://papers.ssrn .com/sol3/papers.cfm?abstract_id=976560&high=%20osofsky.


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on a global scale, their resolution is still sought primarily within frameworks based on, and bounded by a geopolitical system based on the sovereign state.98 The notion that there is a robust correlation between trade and peace holds great sway among academics, politicians and economists. Pax mercatoria has been lauded in terms Hudson would recognize—as a “second chance for peace in our times.”99 Since its establishment in 1995, the WTO has become the institution through which important international trade matters are discussed, including conflicts between national policies and global trade rules. Its top-down process is very different from the cooperation between voluntary transgovernmental networks that Anne-Marie Slaughter, Kal Raustiala and others describe.100 As the WTO considers more and more “trade” questions challenging environmental and public health regulation,101 there seems to be a root contest over who will decide critical questions of public policy and via what decisional process? Resort to the WTO dispute resolution mechanism102 effectively shifts the locus of decision from individual states to a centralized international bureaucracy. The expanding authority of the WTO is typically portrayed as a thickening of the legal-normative structures and a corresponding receding of politics. Critics characterize this move toward centralized international decisionmaking as a democracy

98

99

100

101

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Of course, this state-bounded vision is not universal. Legal pluralists explore how actors other than the nation-state create norms and legal rules. See e.g., Paul Schiff Berman, A Pluralist Approach to International Law, 32 Y J. I’ L. 301 (2007); Myres S. McDougal & Harold D. Lasswell, The Identification and Appraisal of Diverse Systems of Public Order, 53 A. J. I’ L. 1 (1959); Myres S. McDougal et al., The World Constitutive Process of Authoritative Decision, 19 J. L E. 253 (1966–67). Jim Chen, Pax Mercatoria: Globalization as a Second Chance for Peace in Our Time, 24 F I’ L. J. 217, 225 (2000) (arguing that laws fostering globalization, free trade, economic development, and international economic cooperation provide the jurisprudential infrastructure for peace). A-M S, A N W O (2004); Anne-Marie Slaughter, Global Government Networks, Global Information Agencies, and Disaggregated Democracy, 24 M. J. I’ L. 1041 (2003) (exploring transgovernmental regulatory networks and their relationship to democracy); Kal Raustiala, The Architecture of International Cooperation: Transgovernmental Networks and the Future of International Law, 43 V. J. I’ L. 1, 10 – 22 (2002). See e.g., Panel Report, European Communities–Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291-293/R (Sept. 29, 2006); Panel Report, European Communities–Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/ R/ (Sept. 18, 2000);Appellate Body Report, United States–Import Prohibitions of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (Oct. 12, 1998). Understanding on Rules and Procedures Governing the Settlement of Disputes, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125, 1226 (1994).

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deficit.103 The rising role of the WTO, coupled with the growing influence of transnational corporations both domestically and internationally, means that the decisionmakers are no longer democratically accountable to citizens. As pushback to this democracy deficit has grown, the proposed solutions dovetail concerns at the heart of sustainable development. Calls for transparency, process and access resonate both as a tool for sustainable development, and as a means to shore up eroding democratic structures.104 For example, “prior informed consent” has become something of a rallying cry. The Aarhus Convention,105 the Biosafety Protocol,106 and the Rotterdam Convention107 are just a few of the efforts to use procedural checks and access to information as a means of achieving sustainability and reinserting democratic controls into globalized trade. Concern for public participation has been a cornerstone of sustainable development from its inception. The buildup to the Stockholm Convention was notable for its inclusiveness. Its organizers encouraged the participation of multiple voices, going well beyond the usual suspects of academics, jurists and politicians. Indeed, contemporaneous accounts described this inclusiveness as reflecting “intergovernmental acknowledgement of the deep interest of professional, local, and private groups in environmental questions”108 as well as the important role

103

104 105

106

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See generally A C. A, J., T D D: T G T L R (2004) (arguing that decisions made by transnational actors are beyond the direct democratic control or influence of the publics that they impact); J E. S, G  I D 18 – 22 (2002) (detailing how the IMF and the World Bank contribute to a democracy deficit); Benedict Kingsbury et al., The Emergence of Global Administrative Law, 68 L & C. P., Summer/Autumn 2005, at 15 (proposing global administrative space as a new approach to resolving the democratic deficit). But see S, supra note 100, at 194 – 95 (observing that disaggregated transgovernmental networks are not inconsistent with democracy); Raustiala, supra note 100, at 10 – 11 (theorizing that transgovernmental networks will supplement rather than supplant liberal internationalism). Some have proposed that NGOs can help fill the democracy gap and make international legal institutions more transparent, by expanding participation and spreading information and expertise widely to the interested public. See A-K L, N-G O  I L 34 – 35 (2005). S J, supra note 55. Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Jun. 25, 1998, U.N. Doc. ECE/CEP/43, reprinted in 38 I.L.M. 517 (1999). Cartagena Protocol on Biosafety to the Convention on Biological Diversity, Feb. 23, 2000, reprinted in 39 I.L.M. 1027. Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, Sept. 11, 1998, 38 I.L.M. 1 (1999) (commonly known as the Rotterdam Convention). Johnson, supra note 31 at 256.

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civil society played in bringing international attention to environmental issues. Agenda 21 emphasized that broad public participation in decisionmaking is a crucial element of sustainable development, and specified that participation included a right of access to information.109 Sustainable development, with its focus on participation and transparency, may offer an alternative narrative and a starting point to reinvigorate democracy in an ever-globalizing world. Embracing sustainable development could be much more than a means to an environmentally acceptable end—it could be the basis for reassessing the neoclassical economic paradigm and might offer an alternative normative framework for thinking about economic development. Through the lens of sustainable development, the primary objective of development shifts from bald increases in GDP110 to equitable distribution of the products of development—particularly food, education, healthcare, sanitation and clean water.111 Such a move would represent progress indeed.

E. Conclusion We live in a world of ever-increasing interactions on a global scale. The constantly accelerating rate of technological change means that the range and intensity of these interactions are rapidly expanding. The ramifications of these interactions transcend national boundaries, and it is past time to think rigorously about their consequences for law. Progress in responding to global environmental problems necessarily entails balancing complex interdependencies, and accounting for rapid technological change amidst conflicting national imperatives. The realities of global warming, ozone depletion, desertification, and spreading invasive species make a mockery of the traditional distinction between transboundary and wholly domestic harms, and between private and public spheres.112 In responding to these new challenges,

109 110

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Agenda 21, supra note 43, princ. 23.3. Economic development should be a broader measure than mere economic output, and should encompass changes in the technical and institutional arrangements by which output is produced and distributed, as well as changes in patterns of ownership, human skills and preferences. Edward B. Barbier, The Concept of Sustainable Economic Development, 14 E. C. 101 (1987). Yet, difficulties in quantifying these variables has led to a distorted vision of development based on an overreliance on GDP and per capita incomes, regardless of distribution. For an expansion on this theme, see Gunther Handl, Environmental Security and Global Change: The Challenge to International Law, 1 YB I’ E. L. 3 (1990). For a thorough exploration of this question, see T H  I L, supra note 9.

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no single solution stands alone. Success will require progress on many levels: rhetorical, conceptual and material. If we would live together and flourish on our shrinking, warming planet, we must reach beyond oversimplified and dated dichotomies that place international and domestic law in separate realms, while at the same time hold fast to the human rights and democratic values at the core of the United Nations system. Who knows, perhaps real progress toward protecting and conserving “spaceship earth” will also generate more progress toward the goals of peace and justice that Hudson aspired to so long ago.


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