I. Introduction

Sustainable development

The word "development," in its international setting too readily associated with "economic development," refers here to the use or exploitation of a natural resource. The word "sustainable," which conveys the idea of holding up or support, in this context means development that is conservative, and is conducive to continued viability of a resource.

The term "sustainable development" which appeared in the World Conservation Strategy published in 1980 by the International Union for the Conservation of Nature and was adopted by the World Commission on Environment and Development, is used to describe management (i.e. regulation of use and exploitation, and conservation) of a given resource in such a manner that the benefits of the resource are optimized, that is, made available on an equitable basis to the largest number over the longest term. It requires the sparing and economical use of non-renewable resources, and maintenance of the productivity of renewable resources, as well as avoidance of or compensation for, irreversible effects caused to the resource through use or exploitation that does not meet these standards.

Such equitable allocation of benefits from a resource necessarily implies regulation of access to the resource, whether that resource is a stock of fish, a deposit of minerals, or the air or water; and whether the resource is fixed, or mobile and fluctuating across national boundaries, or beyond national jurisdiction in areas sometimes referred to as "global commons." The Report of the World Commission declares that

... physical sustainability cannot be secured unless development policies pay attention to such considerations as changes in access to resources and in the distribution of costs and benefits. Even the narrow notion or physical sustainability implies a concern for social equity between generations, a concern that must logically be extended to equity within each generation. (emphasis added)¹

Thus, according to the Report, "sustainable development" requires, inter alia, (1) "that [the] poor get their fair share of the resources required to sustain [economic] growth"; and (2) "that those who are more affluent adopt lifestyles within the planet's ecological means.... Painful choices have to be made...." The Report is right to conclude, therefore, that "sustainable development" implies nothing less than the "progressive transformation of economy and society"; and to emphasize that "in the final analysis, sustainable development must rest on political will."²

It follows that "changes in access to resources and in the distribution of costs and benefits" can be accomplished equitably only through the establishment of objective standards and the corresponding regulative practices applicable to a comprehensive range of activities having an impact on these resources; and further, that such standards and practices should be based on the best available scientific evidence. The establishment of such standards and practices, as well as the evaluation of scientific evidence, the monitoring of compliance, and the application of the corresponding sanctions do, however, call for decisions based on judgement, and judgement, in turn, is necessarily influenced by the dominant system or values being applied. Inevitably, grave disparities in the economic needs of populations and their capacity for implementing action, will result in wide variations among the judgements arrived at (as articulated by their governments) and accordingly, the basis for regulating and monitoring access and applying sanctions should be some agreed system of values. That system could be one derived from a single dominant and effective ideology, for example free enterprise; or the system might be based on a synthesis of values arrived at after negotiation among the adherents of different ideologies. The latter may be more difficult to achieve, but could enjoy wider support and may be worth striving for.

As the Minister for Development Cooperation of the Netherlands observed:

We need a global mixed economy including a strong and clear international framework of powerful public institutions, a kind of global public sector. We need an internationalization of the concept of the welfare state with international transfers to correct gross inequalities. We need an international pluralistic democracy within which developing countries can participate effectively in international decision-making.³

The principles and rules of law which are to be derived from the concept of sustainable development,⁴ as well as the institutions created to implement them, must take account of existing variations and disparities in the economic needs and capacities of populations as reflected in the different policies articulated by States. Sustainable development is not to be understood, after all, as merely implying "sustainable economic development," for then one must surely ask "which country's economic development is involved"? Clearly, to "sustain" the economy of a highly industrialized country, dependent on escalating consumption, it would take proportionately much more from a given resource than it would to "sustain" the economy of one of the least developed countries, so that such a meaning for the term would merely contemplate perpetuation of the environmentally less-than-satisfactory status quo. Similarly, the term "sustainable" is apt to mislead if it is used, as is done occasionally, in such contexts as "sustainable industrial development" or again, "sustainable energy strategy." Such uses merely raise questions: whose industrial development? whose energy strategy? and make us forget that it is sustaining the environment, sustaining the resource, that is called for, and not the sustaining of any one country or group of countries, perhaps in the very pattern of production and consumption that has brought some parts of the environment to the threshold of collapse.

Institutional implications

These thoughts on the concept of sustainable development suggest four sets of implications as regards its implementation in the field of marine affairs, or indeed in any other. First, the holistic approach adopted by the UN Convention on the Law of the Sea in declaring at the outset that "the problems of ocean space are closely interrelated and need to be considered as a whole,"⁵ is of particular importance in formulating principles and rules of law for achievement of the aims of sustainable development, given (a) the multiplicity of factors, scientific, economic, social, and political which need to be taken into account in the process; and (b) the number and variety of marine resources, management of each of which must be conceived and carried out after taking into account management requirements of the others.

A second set of implications which follows from the first, is that there must be universal participation in that endeavour: every State, irrespective of its social and economic system, and its level of economic development must be recognized as having both the right and the duty to contribute to achieving sustainable development of a resource.⁶ Three implications derived from the principle of universal participation are of special importance:

a. Participation by States must be based on the principle of the sovereign equality of States proclaimed in the Charter of the United Nations and repeatedly reaffirmed through its organs.⁷

b. Universal participation is optimized when all States are enabled to possess the essential equipment and capacities (finance, technology, science) to take part effectively in making and implementing decisions.⁸

c. Since the capacities of States to participate may be expected, in the short and medium term, to vary considerably, equity would prescribe that implementing sustainable development allows for a system or balanced differential obligation, that is each State would be called upon to undertake obligations to contribute to the process which takes into account its capacity to do so.⁹

Thirdly, for development of a resource to be sustainable there must be regulation of access to it. The rules governing access to the resource, which must reflect, in the words of the Brundtland Report "a concern for social equity between generations, a concern that must logically be extended to equity within each generation,"¹⁰ should (a) seek to give effect to these equities in a manner determined by universal participation, (b) be devised, formulated, and applied in a timely manner so as to prevent, rather than merely be the response to, irreversible depletion or degradation of the resource, as well as personal injury and damage to property (preventive or "precautionary" principle);¹¹ and (c) be based on the best scientific information and data available.¹²

Finally, the implementation of the holistic approach, universal participation and regulation of access to the resource require orderly cooperation at global, regional, State, and community levels. The promotion and ordering of wills, whether of States or individuals, to cooperate require the application of at least two institutions: organization and law. As to organization, as one authority puts it:

By binding people together in a long-term multilevel game, organizations increase the number and importance of future interactions and thereby promote the emergence of co-operation among groups too large to interact individually.¹³

Law, by establishing obligations through rules and mechanisms aimed at securing compliance, supports or substitutes the will to cooperate when changes in circumstances have weakened or removed the original impulse to do so freely. Law and organization must together provide for one or more systems for the orderly settlement of disputes, to deal with possible infractions of rules and the protection of the rights of affected individuals,¹⁴ the latter aspect implying, in turn, the early development of rules relating to liability for damage, as well as of efficient and effective procedures for the presentation of claims.¹⁵