Docent of Environmental Law, University of Tartu
Sustainable Development as the Fundamental Principle of Europe's Environmental Ius Commune
Environmental law professors M. Heldeveg, R. Seerden, and K. Deketelaere have in their article 'Public Environmental Law in Europe: A Comparative Search for a Ius Commune' analysed the common ground that can be found in the environmental law of different European states. They have discovered many common threads in the basic principles of states' environmental law, the legal methods of regulating environmental risks, and the standards regulating environmental proceedings. It is possible to conclude, based on these authors' analysis, that the environmental europa ius commune is framed by the sustainable development principle.
The goal of the present article is to analyse the legal content of the sustainable development principle. Conducting this type of research is based on the recognition that, even though the word combination 'sustainable development' can be found frequently in material produced over the last few decades in legal acts, policy documents, and scientific literature, the specification of the content of sustainable development (especially in the legal arena) is not at all unanimous. Often it is believed that in the case of sustainable development, one is dealing only with the foundation for the development of environmental policy, which is entirely lacking clearly specified legal substance. At the same time, the opinion continues to spread that sustainable development has become one of the modern principles of environmental law and that it's not just a political slogan. This opinion has been shared by the International Court of Justice in the Gabcikovo-Nagymaros case1. In this case, the court actually recognised the standard nature of the principle of sustainable development and 'the need to unite economic development with environmental protection'.
This article is composed of three sections - in the first, sustainable development as the guiding principle of environmental policy is discussed; in the second, the author presents his vision of what the legal status is of the nature of the principle of sustainable development; and in the third, the role of open proceedings in the realisation of sustainable development is investigated.
Even though, in the case of environmental policy, this is quite a young area of policy, individual elements of environmental protection can be found even in the very distant past. The first appearances of environmental policy were related to the negative consequences of the urbanisation process. Even in sources of information dating from antiquity, one can read complaints regarding the stench in the air and the pollution of drinking water in cities. At the same time it should be noted that, naturally, this type of regulation in ancient times was not based upon the recognition of the need to preserve the environment but, rather, brought about, most likely, by social and economic factors.
The first time of environmental protection awareness can be labelled an indirect and utilitarian environmental era, which lasted from the Industrial Revolution until the 1960s. This environmental protection era was characterised by the following attributes. Informed regulation of the use of natural resources took place, even though the goal was not preserving (saving) natural resources but ensuring the availability of raw materials for industry2. An interesting provision was contained in the Weimar Republic Constitution, in which § 155 established the requirement for the intensive use of land and the essential natural resources the land contained3. The above-mentioned provision clearly confirms that the use of natural resources was addressed only where raw materials were concerned. They were to be used as extensively as possible. The deforested areas of Western Europe reflect the results of this type of policy. Industrial pollution was governed by the same goal of unlimited economic development, which was supported by release of work, greater industrial freedom, and the freedom to choose one's trade. H. Hohman quotes the 1808 Prussian government's instructions, in which it was written that
'[...] the law and administration must be implemented in unison in order to transcend those conditions which prevent the complete and total realisation of the talent, skills and energy of citizens.'4
We now know that humans have used their talents, among other things, for the destruction of the environment and in the development of ever more effective methods of achieving this end.
In conclusion, it should be noted that during this phase of development in environmental policy, regulation was directed toward the improved stockpiling of natural resources, without taking into consideration the exhaustibility of these natural resources. In terms of pollution control, legal regulations were used to directly and indirectly compromise the health and security of the people, and uncertain risks were completely ignored.
The second period of environmental policy development began in the 1960s when the first laws directed at environmental protection began to be enacted in Europe and elsewhere.
This stage was characterised by the following attributes. Regulation was directed toward compensation for damage already caused by industry and for the removal or alleviation of direct and confirmed health and environmental hazards5. Alongside the principle of direct hazard prevention developed the second principle of environmental law, the 'polluter pays' principle, which, in its original form, applied the theory of the adaptive capacity of the environment and foresaw that the burden of expenses and damages related to pollution control should be carried by the polluter6. It would be even more accurate to call this period's 'polluter pays' principle the 'who pays pollutes' principle. It was discovered according to this line of reasoning that it was almost always possible to compensate for the consequences of pollution, while it was only important who paid.
The third phase in the development of awareness in environmental policy, which began in the 1980s, is best described by the rise of the principle of sustainable development and the increase in support for this principle. Since that time, the principle has become the foundation for environmental policy in the European Union member states and many other countries.
An important milestone in the development of environmental policy occurred in 1972, when the United Nations Environmental Conference was held in Stockholm. Since then, people have been talking about the 'ecological' period in the development of mankind. In 1983 the Brundtland Commission was formed, with the goal of identifying global environmental problems and making suggestions about possible solutions to those problems. The results of the commission's three years of work can be found in the report 'Our Common Future'7 presented to the UN General Assembly. This document's main keyword is sustainable development - what is it; what is its importance to mankind; and what is the policy, social, and economic background of sustainable development? The Brundtland Commission defined the concept of sustainable development as a path of development that fulfils the current generation's needs and aspirations without placing in danger the similar interests of future generations. In other words, the basic principle that we cannot burden our children with our sins was applied.
Ensuring sustainable development is critical, because if this development is not achieved we will not be just placing our collective welfare in danger but will be imposing an even more hopeless future on our children and grandchildren. If the preservation of mankind itself is not in danger here, then at least the preservation of the quality of life of future generations is.
It is important to understand that even though in most cases the common understanding goes against sustainable development and economic progress, it is also true that just as economic progress is unthinkable without the preservation of natural resources and an environment worthy of humanity, environmental protection requiring large investments is impossible without economic development. Thus, it is important to find balanced solutions, without resorting to extremes.
The principle of sustainable development can be treated in a wider context. The principle of sustainable development affects the deep-seated interrelationship of mankind and the environment, and ensures the continued existence of both, encompassing in doing so aspects of philosophy and policy development8. The principle deals with the re-evaluation of the growth model chosen by much of mankind during the time of the Industrial Revolution, in the 18th century. The previous sustainable development growth model kept an eye primarily on economic and industrial growth and the material well-being...