July 2, 2012: Panel 2C - Sustainable Development as a Normative Concept

Sustainable Development as a Normative Concept Video

Mon, 02 Jul 2012 13:30:00 PDT

Property Rights and the Environment: The Ecological Function of Property in Brazil

Nicholas Bryner — Mon, 02 Jul 2012 13:30:00 PDT

Article 225 of Brazil's Constitution guarantees to all the "right to an ecologically balanced environment" and imposes a duty on both the government and society to "defend and preserve [the environment] for present and future generations." This constitutionalization of environmental rights and duties has an important impact on property law inasmuch is it affects the relationship between private and public interests in the use of land and other natural resources. The right to private property is explicitly guaranteed in Brazil. However, this right is not absolute; under the Constitution, real property must fulfill its "social function." Among other requirements listed for property's social function is the "appropriate use of available natural resources and preservation of the environment."

Recent jurisprudence of the High Court of Brazil (Superior Tribunal de Justiça), Brazil's highest court for interpretation of infra-constitutional federal law, applies these principles as an "ecological function of property" that imposes limits on private property rights. This Article analyzes several of the Court's opinions that employ this line of reasoning, including a discussion of how the ecological function of property affects regulatory takings law and application of the country's Forest Code. Ultimately, the Court's opinions support the idea that in order to foster sustainable development, public and collective interests in natural resource use must be held above limited, private interests -- a hierarchy that has not existed historically, but that the Court now seeks to enforce.

Acting as if Tomorrow Matters: Accelerating the Transition to Sustainability

John Dernbach — Mon, 02 Jul 2012 13:30:00 PDT

This paper would be based on my forthcoming book, Acting as if Tomorrow Matters: Accelerating the Transition to Sustainability (Environmental Law Institute/Island Press May 2012). Synthesizing answers from more than three dozen nationally known experts to questions about sustainability, the book provides a useful, empirically based framework to explain the progress made in the United States to date on sustainability—and the most significant obstacles standing in the way of greater success. Building on this framework, the book explains in detail how to make a variety of decisions even more attractive to private and government entities, how law can provide an even better environment for sustainability, and how public opinion and leadership can be engaged more effectively to support sustainability. The book thus provides a checklist of ideas and opportunities for moving toward sustainable development—starting now. Although the book focuses on the United States, the conclusions it reaches are likely to be useful for any country. While I am finalizing the book right now, the presentation would highlight many of the book’s key conclusions.

As you may know, I direct a project through the Environmental Law Institute that reviews progress toward sustainability in the United States and makes recommendations for future actions. The two prior books from this project are: Agenda for a Sustainable America (John C. Dernbach ed. 2009) and Stumbling Toward Sustainability (John C. Dernbach ed. 2002).

Towards a Right to Sustainable Energy: The Contribution of Human Dignity to the Promotion of Sustainable Development

Shalom Blustein — Mon, 02 Jul 2012 13:30:00 PDT

Human dignity and sustainable development represent two of the most important concepts relevant to the governance of modern society. Human dignity forms the basis for the modern approach to preserve and protect human rights. Sustainable development is concerned with defending and protecting the environment in harmony with economic and social development. While these concepts have different emphases, both human dignity and sustainable development are concerned with, among other things, the promotion and protection of the intrinsic value of human beings. However, despite the potential overlap between their objects, these concepts are rarely considered together.

One notable exception to the above statement exists in the 2002 Johannesburg Declaration on Sustainable Development.^{^[1]} This document notes that it is necessary to focus ‘on the indivisibility of human dignity ... to speedily increase access to such basic requirements as clean water ... adequate shelter, energy, health care [and] food security’.^{^[2]} This statement confirms that to promote sustainable development it is necessary to pursue simultaneously the concept of human dignity.

It is with this in mind, that this paper explores the intersection between human dignity and sustainable development. This paper builds on the work of the Johannesburg Declaration by considering how the pursuit of human dignity can contribute to one of the central themes of sustainable development: a more sustainable approach to energy production.

This paper will consider:

the importance of recognising the dignity of humans in order to contribute to a more

sustainable approach to energy production; and

the forum in which the concepts of human dignity and sustainable development can converge.

Having considered these issues, this paper offers two conclusions. The first is that the recognition of human dignity can contribute to the achievement of a more sustainable approach to energy production. This can be achieved by developing a ‘right to sustainable energy’. This right can operate as soft law – in the international sense – that can inform domestic legal developments. Second, and more generally, the convergence of the concepts of human dignity

[1] Johannesburg Declaration on Sustainable Development, UN Doc. A/CONF.199/20 (2002) (Johannesburg Declaration).

[2] Johannesburg Declaration on Sustainable Development, UN Doc. A/CONF.199/20 (2002), para 18.

Sustainability Through the Lens of Principles of International Environmental Law

Sabrina Alzais — Mon, 02 Jul 2012 13:30:00 PDT

This proposal will attempt to further develop the “requirement” of sustainability[1], as this concept plays a key role in the development of environmental law. Particularly, we focus on the temporal aspect of sustainability.

There are different definitions of sustainable development but they all are undermined: the long time. For instance, on the one hand, the International Institute for sustainable development insists on that must “redesigning institutions to ensure current and future potential to meet the needs and aspirations of communities”[2]. On the other hand, the Brundtland Report states: “Sustainable development is a development that meets the needs of the present without compromising the ability of future generations to meet their own needs”[3]. It’s why the question that gives a direction for presentation is: How is international and environmental law can take into account terms issues?

To try to answer this question, we will focus on the international and environmental jurisprudence. This framework is the place where conflicting issues enhanced conflicting approaches. Judges must settle those conflicting temporalities.

There are at least two difficulties: first, litigants claims evokes different time scales. Environmental conservation implies a long time approach where economical approach supposes a shorter scale of time.

Time is plural and it varies according to social activity concerned. The legal activity is no exception. Secondly, judges must take in account the time of law.

Studying jurisprudence in international and environmental jurisprudence is a field to highlight how judges settle conflicts of temporalities.

[1] For the “requirement”, see Morgan Sweeney, L’égalité en droit social au prisme de la diversité et du dialogue des juges, Thèse de doctorat, Université Paris Ouest Nanterre La Défense, 2010, en cours de publication.

[2] International Institute for Sustainable development, Impoverishment and Sustainable Development (Winnipeg : IISD, 1996).

[3] World Commission on Environment and Development, Our common Future (Oxford : Oxford University Press, 1987).