Ministers' Deputies / Rapporteur Groups

GR-C
Rapporteur Group on Education, Culture, Sport,
Youth and Environment

GR-C(2006)28-add       2 October 2006[1]

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Sustainable development: a new approach to values, law and public policies in Europe

Item to be considered by the GR-C at its meeting on 12 October 2006

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SUSTAINABLE DEVELOPMENT ETHICS AND THE COUNCIL OF EUROPE

By Enrique Alonso García

UNESCO Chair for the Environment. Universidad Rey Juan Carlos

Letrado Mayor del Consejo de Estado

Director del programa Friends of Thoreau

Instituto Universitario de Investigación en Estudios Norteamericanos

Universidad de Alcalá de Henares 

The purpose of this paper is to analyse the strategies for sustainable development from an ethical point of view and identify possible gaps; and to define the possible role and added value of the Council of Europe in assisting countries through standard setting initiatives, policy making and project management, as well as to fill in those gaps and to guarantee that development is carried out taking into account Council of Europe values. Eventually, to draft a Decalogue of ethical principles. 

In should nevertheless be taken into account that engaging in an exercise of ethical analysis, in particular with the objective of designing a policy program based on sustainability ethics, is per se questionable. Policy design and implementation, including policies which deal with values appraisal and expansion, such as education, are the realm of governmental institutions, as well as, of course, international organizations; but having public institutions tangling with morals or ethics is much subject to debate in itself, so the paper addresses, first, why is it that sustainable development has brought to the public arena “ethics management” as a possible and desirable instrument of public policy.

Second, even if the possibility or convenience of designing policies that use ethics as an instrument is asserted, the issue of content, e.g., what exactly is sustainability, is not so clear or rather, there is no consensus about the concept itself of sustainability, and much less about its consequences and/or its operationalizing, which leads to the need to determine and refine it in a transparent way, with clear lines, via principles or other instruments, in order to prevent that the level of abstraction of the concept and of the pillars or dimensions of sustainability renders them useless, preventing at the same time the creation of shopping lists tailored for the convenience of the decision-maker.

Third, sustainability ethics play two different roles, as moral foundation for principles and law (or policy), and as a particular policy instrument, as a decision-making tool capable of providing specific techniques for piecemeal policy-making; this double role needs to be acknowledged and addressed.

Fourth, following these previous lines, the analysis of national sustainable development strategies of some countries of the Council of Europe will determine both whether they include ethics-based policies or not, and whether there are specific ethics-based instruments, besides  principles, law, indicators, guidelines, and/or other instruments typical of most public policies implementation processes.

Finally, the paper analyses if there are gaps that the special nature as a value-based regime of the Council of Europe could contribute to fill. It is a central issue of this paper to assess if there is a role or “niche” for the Council of Europe so that its actions in this area are not repetitious of other national, supranational or international processes. A possible agenda for the Council of Europe in this area is submitted to discussion.

POLICY VIA ETHICS

When sustainable development is compared with other areas of public policy or private action one thing surprises the analyst as well as the actors engaged on its implementation: the countless voices that claim that sustainability cannot be achieved by using the ordinary instruments that States and other organizations use for policy making; that ethics has a very important role to play.

This is due to the fact that the basics of sustainable development imply a new paradigm for economic and social thought. In this sense, sustainability ethics have inherited the progress in social thought and action created by environmental ethics. If ethics is all about “a reasoned account of how people should live their lives”, environmental ethics were born and developed as a policy tool because many people started to question practices associated with the traditional idea of human progress. Environmental ethics was developed as a tool to investigate and apply different conceptions of progress. In sum, progress has produced longer average life spans, and human welfare, but by-products of industry and economic growth threaten these gains. Attempts to solve industrially created health and inequality problems with ever more science and technology, common to modern knowledge and economic systems, are only partly successful. Protecting values such as health or biodiversity may require reconsidering ideas of progress and human fulfilment. This is the task of environmental ethics.

As we will see, sustainability is based in a particular and specific way of understanding human progress. It is based on a consensus around a particular idea of progress, one of those –among many, some narrower, some broader than sustainability- advanced by the new paradigm  supported  by environmental ethics, and it is no surprise then that sustainability has drawn or is attempting to draw from environmental ethics some of its goals, experiences and achievements.

The transition to sustainability from the traditional idea and policies of progress implies a profound change in the prevailing pattern of civilization, a new paradigm, particularly in what it refers to the cultural pattern of articulation of the relationship between humans and nature; it entails the replacement of certain images of humanity by others. And new paradigms usually need new moral conceptions (how humans relate to each other) and new ethics (what kind of life is good for us to lead). This has led to almost universal consensus in the sense that the usual public policy instruments are useless for sustainability if utilized in the context of the older paradigm of “classic” economic progress. Thus, policies that change the old paradigm itself are needed as an additional instrument to foster sustainability policies:

“What bonds and upholds the specific understanding of sustainability is the urgent need for a new ethics of development”; “sustainable development is a new development style [that] must be guided by a new development ethics, one in which the economic objectives of growth are subordinated to the laws governing the operation of natural systems, subordinated as well to the criteria of human dignity and of improvement in the quality of people's life.” (The Politics and Ethics of Sustainability, R.P. Guimaraes, pg 21 and 19[2]); “If we are to move towards a more sustainable path in the post-modern world, we need to develop a new way of understanding ourselves, and our relationship with nature. We must accept the fact that our cultural beliefs and practices are disrupting the sustaining capacities of ecosystems. Secondly, we need to construct a new vision, complete with new rules, and a new vocabulary; in short, we need a new way of thinking about ourselves, and the world in which we live. This paradigm shift will require a basic understanding of Homo Sapiens as part of a natural social order refraining from dominating other species or the Earth.” (The Ethics of Sustainability, J.C.Dunstan and G.M.Swan[3]); “Given that individuals are, to a greater or lesser extent, self-interested and greedy, sustainability analysts explore the extent to which such behaviour could be modified and how to achieve the modification (…). Some argue that a stewardship ethic (weak anthropocentrism, …) is sufficient for sustainability, i.e. people should be less greedy because other people (including the world's poor and future generations) matter and greed imposes costs on these other people. Bioethicists would argue that people should also be less greedy because other living things matter and greed imposes costs on these other non-human species and things. This would be stewardship on behalf of the planet itself (Gaianism) in various forms up to "deep ecology" (…)” (Sustainable Development: Ethics and Economics, R.K.Turner & D.W. Pierce, pg 17[4]); “As the aim of ethics is the regulation of the power of acting, the threats posed by harmful technological interventions are, thus, growing in an “ethic vacuum”. Recognising this, Jonas (1979[5]) proposed the adoption of a new principle of responsibility where the highest rule be “let mankind exist!” The traditional concept of a “contract” inter pares as the ethical fundament fails at the present situation when we need to assure today, the quality of life of future generations. The must exist and the not yet existing are two essential points to impose on contemporary modernity the recognition of an objective must be (at). With that in mind, it is possible to deduce a commitment towards a responsibility for and the preservation of the being (…). This responsibility is, however, formal and its ethical and moral dimension only emerge with the existence of a feeling for doing goodness by its own inherent objective, as it shames on the selfishness of power (…). Hans Jonas proposal is to build an ethical modernity that is able to limit the human capacity as a destructive agent of the perpetuity or the sustainability of life. From that perspective, we can conceive sustainable development as a horizon within the framework of an ethical modernity, not only of a technical modernity.” (Science and the Ethics to Sustainability, R. Bartholo, Jr.; M.Bursztyn & O-H. Leonardos,, pg 117[6]).

This idea could also be expressed in the same way by looking at the issue from its reverse, by looking to unsustainability as a crisis of values: “Unsustainability can be seen to be not an environmental or social crisis as such, but rather a values crisis with adverse ecological and social symptoms. The same set of beliefs and attitudes which has given rise to the problem is also impeding corrective innovation and policy responses. To achieve sustainability it is essential that we begin not only to think in new ways, but to believe new things. As Einstein is quoted as saying, `No problem can be solved from the same consciousness that created it´.” (Sustainability, H.Tibbs[7]).

The citations could be extended forever.

This need to call for ethics as part of the program towards sustainability reached not only the foundation of the policies of sustainable development but also its operational instruments:

“Although the ethical dimension is one of many that should underlie a Sustainable Development Strategy, it is [clear] that this dimension should be considered as the fundamental one, in the context of sustainable development. The reason for this is that it is associated with a set of values that should be upheld to promote the welfare of current and future generations.” (The Ethical Dimension in the Sustainable Strategy for Sustainable Development, L.Briguglio[8]); “Ethical Challenges in Promoting Sustainable Development: 1.- The Key Structural Challenges: Operationalizing ethics: Ethics and values - such as justice, equality, solidarity, protection of the environment and respect for human rights - are already enshrined in many existing national constitutions, international agreements, and soft law documents (such as the Universal Declaration on Human Rights and the Earth Charter). The real challenge is how to implement these ethics and values, and adapt them to the changing and emerging threats and injustices which we urgently need to address in the new millennium.” (Globalization and Sustainable Development: Is Ethics the Missing Link? 
Synthesis Report prepared by Green Cross International[9])..etc

Actually, the consensus on the need to advance sustainability using ethics as the tool to create and establish  a new paradigm is so clear that the backfiring effect is starting to get its bite. As some actors have started to say, “sustainability policy in Europe rests on an extreme degree of consensus, that sustainability is right. There is no ethical basis for this. An extreme consensus can in itself be unethical. By nature, sustainability must claim a monopoly of belief: as a "belief" it cannot admit an opposite belief is equally valid. It is a consistent and universalist world-view, Weltanschauung. The standard argument for recent sustainability policy - transgenerational responsibility - has no inherent ethical status either. In practice sustainable [policy] continues standard practice, and this offers the best explanation for its success. Sustainability is an ideology used to justify existing policy (and social order).” (P.Treanor, Why Sustainability is Wrong?[10]).

But, besides this effect of obscuring the advancement of other conflicting ethics or beliefs, there is also an objection to engage not only in sustainability ethics-building but in ethics-building in general that is at the root of liberal democracy. Moral modernity is based on Kantian autonomy. Liberal democracies have no function in the modelling of ethical desires. Ethical modelling recalls the type of intrusive Government that an open society (Popper[11]) should reject. Freedom of thought and personal values are the inner citadel of the citizens and the State should never trespass upon it. Human rights are based on the building of individual autonomy. The role of the Government is to provide by law security “of body and property”.  The historical catastrophes of the 20^th Century prevent us against States engaged in building the character of its citizens.  Policies are decided through majority voting (including the constituent decision of self-limitation) and they do not consist on the brainwashing of the citizens´ minds by the State.

Nevertheless, even in the most recent trends of essential liberalism, nobody denies a role for the State in “soul making”; a role of the State in the construction of democratic virtue. The values of citizenship which are of essence for the achievement of their ethical success by the citizens need to be actively supported and promoted by the State. There is no self-shaping of a person’s life that does not stem from its beliefs and form a set of values, dispositions and sensibility, all of them influenced by various forms of social identity: these are what conform a person’s ethical self. And as current liberalism has it, “the fact that each of us has a life to make can at least raise the possibility that others, the State among them, ought to act to help us in that project. And at least some of these possibilities entail some sort of involvement on our ethical selves” (The Ethics of Identity, K.A.Appiah[12]). The State can, thus “intervene in the process of interpretation through which each citizen develops an identity” and “affect the ethical lives of its citizens” (Appiah).

But, moving as we are in dangerous terrain for the States go get into, the reasons to intervene, which are exceptional, should be submitted to careful scrutiny. And liberal political scientists and ethicists have identified at least three areas where ethics making can be justified –not as transformation of ethical values but as intervention on the traditional sets of values- :

The State should help its citizens 1) to remedy their gaps or incapacities on reasoning by removing irrationality via the provision of adequate information, so that the preferences expressed by the citizens are “informed preferences”, such as making clear the full consequences of individual and collective actions (for example, making clear that mercury consumption can be fatal to health etc); 2) by reconfiguring social meanings that are at the root of inequality (for example, through antidiscrimination policies that go deeper than formal discrimination by removing social stigma on [gender] roles by erasing the flawed values on which they can be based); and 3) by education, since there is no democratic society that does not take education with utmost seriousness in order to address two concerns: preparing a child for an autonomous existence and self-perpetuating the political order by promulgating its constitutive tenets (Appiah).

Under this three-pronged test that the liberal tradition has introduced to control the soul making by State run policies, does  sustainability meet those exceptional requirements of rationality building, removing false stereotypes that lead to inequality?  can sustainability be taught due to the lack of substantial social disagreement as to what the truths that it pretends to encompass are?  or  has it reached the levels where it can be taught as an (or the only) option that the majority believes to be true? These are, the three of them, issues of content, of what sustainability is about, but as a first step it seems that sustainability  meets the standards to allow the State and/or international organizations to engage  in ethics building.

Sustainability implies the knowledge and information about the long term effects and the actors to be affected by economic growth; it is  a knowledge and set of data that runs counter to the main economic and social stereotypes (e.g., the notion that all non human living things have intrinsic value runs counter to the classic paradigm that progress is only for humans), and it is a knowledge that, being value-based, renders itself ideal to be asserted through education policies, since it seems to have reached overwhelming social and scientific consensus.

WHAT IS SUSTAINABILITY ABOUT  IN TERMS OF RELEVANCE FOR ITS ETHICAL DIMENSION?

This is neither the appropriate place to describe, nor the adequate moment to evaluate the different conceptions on sustainability that fill libraries and allow decision makers so vast a discretion that it has been rejected by many because of its susceptibility of being used, even in a cynical manipulative way, to obtain goals which for other actors would be considered totally anti-sustainable. The variety of contents of the concept of sustainable development renders it totally open to manipulation and self-justification. “Sustainable development is suffering from a pathology common to any formula to change society too loaded with meaning and symbolism. In other words, behind all that unanimity there are real actors that hold very particular visions of sustainability”(Guimaraes, pg 25).

But at the same time there seems to be an undisputed core. The paradigm of sustainable development, independently of whether its foundations are anthropocentric or biocentric (preservation of natural capital for future generations of humans? or because all living things have inherent and intrinsic value?), will only become a reality once we specify its real components, the intricacies of its economic, environmental, social, and cultural contents. Sustainable development, as official paradigm, means “a new [economic] development style that is environmentally sustainable in the access and use of natural resources and in the preservation of biodiversity; that is socially sustainable in the reduction of poverty and inequality and in promoting social justice; that is culturally sustainable in the conservation of the system of values, practices and symbols of identity that, in spite of their permanent evolution, determine national integration through time; and that it is politically sustainable by deepening democracy and guaranteeing access and participation of all sectors of society in public decision-making” (Guimaraes, at 18-19).

Concerning the first dimension or pillar, the most debated aspect, because it constitutes the pillar of the traditional paradigm that the sustainability ethics are called to change, is precisely the notion itself of economic development, or to put it in other words, whether sustainable growth is needed for sustainable development. The term itself of sustainable development is interpreted as consciously avoiding, and even denying, the notion of sustainable growth. “Growth is not sustainable. The term sustainable growth, applied to the economy, is a bad oxymoron” (H.Daly[13]). “The paradigm of sustainability assumes that growth, defined mostly as monetary increments of the product, and as we have been experiencing it, constitutes an intrinsic component of the insustainability of the current style (…)  [The new] paradigm emphasizes that development must produce qualitative changes in the quality of life of human beings. More than the mercantile goods and services exchanged in the market, these aspects include the social, cultural and aesthetic dimensions of meeting material and spiritual needs. [It implies] he displacement of growth as the ultimate goal of development by a process of qualitative changes.” (Guimaraes, 20). “Empirical reality indicates also that wealth accumulation or economic growth does not constitute and has never been a requirement or precondition for development. Human welfare options are projected well beyond economic welfare. Wealth in itself is not the decisive factor, rather it is the use a community gives to its wealth. Just as a person can spend all of his or her income on drugs or on his/her children's education, so countries may spend their assets on weapons or invest in improving the quality of life of its populations. Numbers clearly indicate that countries with equivalent levels of economic riches have radically different welfare levels” (Guimaraes, 40)

One could argue indefinitely about whether, from the point of view of policy, sustainable development as non-growth is or not a reasonable goal to pursue through the democratic process. From the perspective of ethics that this paper is trying to explore, the question is, rather, whether this discourse can supersede what seems to be the prevailing societal values, in particular economic growth, quantitatively speaking in the most classic sense of the economics of development, since  growth has been proven not only to be the natural orientation of freedom of the markets but the most logic of public morals.

Traditionally, economic growth, as a paradigm, was so ubiquitous that it did not need to justify itself in terms of ethics. It was based in the most sacred principle of efficiency ethics (the most free way to allocate resources), that of individual and collective autonomy exercised through the markets. It was the intellectual denial of “morality” or of ethical value to growth per se what allowed for the flourishing of environmental and sustainability ethics. It was the need to assert other ethical values (intergenerational concerns, non-human life concerns, or even spiritual concerns…) as a correction to markets and to non-informed desires, what triggered the new paradigm of sustainability.

More recently, though, serious research has been done about the moral consequences of economic growth, about its implications for equality, for the environment, for cultures, for the forwarding of democracy and human rights…, and the evidence seems to be clear. Empirical evidence seems to demonstrate that the prevention of growth creates many more problems for those values than its achievement. Happiness as the possibility to pursue one’s own project of life seems to be deeply rooted in growth and in the perception of that growth in quantitative terms (B. M. Friedman, The Moral Consequences of Economic Growth[14]).

So, whether the official establishment wants it or not, the core dimension or pillar itself of sustainability (economic development) is subject to much moral an ethical discussion. Independently of wishful thinking, such as alternatives that attempt to combine both contradictory economic strategies (P. Bartelmus, Sustainable Development - Paradigm or Paranoia?[15]), sustainable or steady-state economics are only part of the consensus, since the advancement of growth is still considered by many a moral good.

Curiously enough, considering the second and third dimensions or pillars (environmental and social) even the advocates of the moral benefits of economic growth such as B.M Friedman, concede that there are tenets, such as equality and the environment, in particular the second one (since equality is considered by most “classic” economists more a consequence per se of economic growth rather than a needed policy of correction of the trends of growth), that need public intervention, pretty much as the advocates of today’s constructive liberalism justify the need for “soul-making” for the achievement of equality (as distributive justice and as universalization of the main public services: water, health, food, energy, education, information…, or the Millenium Development Goals). So, while the economic pillar is still subject to moral and ethical debate, both the environmental and social pillars of sustainability are not subject to much discussion (the details of the operationalizing ethics do, but not their assertion as main values that should inform sustainability policies). The same can be said, of the cultural dimension, as soon as traditions are not justified as having per se inherent value but as tools for the building of the ethics of identity (Appiah), although it has taken a while to have a widespread acknowledgement (see e.g. the “Second International Conference on Environmental, Cultural, Economic & Social Sustainability – 2006”, Vietnam, 9-12 January 2006)

The fifth pillar, the political dimension of sustainability “is closely linked to the process of deepening of democracy and citizenship, and it strives for the full incorporation of people into the development process. This refers, at the micro level, to the democratization of society and, in the macro level, to the democratization of the State” (Guimaraes). That is the reason why “governance has become one of the main issues in the arena of sustainable development debates.

These five dimensions or pillars are all of them so important, than when the five of them are at stake in particular situations or when they interact (for example, policies of environmental justice –economic, social and environmental values are at stake-; landscape policies –where environmental and cultural values join via bioregionalism ethics-; or policies of traditional knowledge and access to genetic resources –value added economics, social justice, and environmental concerns via biodiversity preservation-), sustainability policies are specially justified.

THE ROLE OF SUSTAINABLE DEVELOPMENT ETHICS IN POLICY MAKING

Ethics play two different roles in decision-making. First, it contributes to the foundations of the policy instruments utilized by organizations. Second, it provides also valuable tools for decision making itself, in addition to other instruments (law, economic incentives, technological advancement…) whose correct use ethics-based methodologies and instruments can refine and double-check.

At the abstract level, the ethics of sustainability constitute the essential explanation for the new policy of sustainable development as a whole and for the new policies concerning new technologies, new laws, new sectoral policies, and even new economics. Without the ethical explanation of what sustainability is about (long term continuity, future generations as actors, intrinsic value of non-human interests as part of the picture…), the new policies based on sustainability cannot be properly understood at all. For example, why the preservation of microbia in deep sea beds is an overriding interest that can legitimate a moratoria on bottom-trawling fisheries, or why the State should spend millions in the gathering of traditional knowledge of the elders or of the women-elders associated with natural resources…etc., need explanations that go beyond the apparent rationality of traditional economics and development. Why the socioeconomic implications of GMOs may ultimately be as important as the environmental risk that GMOs imply need also an ethical approach alien to traditional ways of thinking. Principles, guidelines, strategies… are basic tools for that purpose, but they can be mismanaged if the values that underlie them are absent; so it is the core of the sustainability ethics, its richness and complexity, what needs to be understood and expanded.

The problem with this abstract role of sustainability ethics is that there is a large gap from the abstract dimension of its basic premises to the more detailed ethical norms that ought to be operational enough to be applied.

But also, on the other side, as the practice of environmental ethics has shown, ethics, in our case sustainability ethics, can also be a powerful decision-making tool at the square footage level. Decision making for the solution of environmental problems needs different levels of reasoning. Solutions that focus only on the technical and economic viability are in many cases doomed because of the lack of appropriate consideration of ethical concerns. Certainly, in order to take the right decision, which ultimately will always lead to the conflict prevention decision, the solution must be, to start with, technically feasible. The technical solution, though, must be also economically viable and, of course, in accordance with the law. It is useless to impose a technical solution which is illegal and it must be, at least in the long term, economically viable too. At the same time, the solution must also be socially acceptable. The realm of politics, in the broad sense, should ensure, in order to prevent high transaction and enforcement/implementation costs, that society does not oppose the solution.

But there is no sense in promoting a technical, economic, legal, and politically viable solution if it falls apart from environmental ethics considerations. The solution that does not take into consideration the interest of marginalized groups, future generations, or nature interests/rights will never last beyond the life of the current generation, or will not last for long because the perpetuation on unjust situations never lasts. The problem will be postponed, not solved.

MODEL FOR DECISION-MAKING

It is the question of how ethics should be operationalized to the level of rendering practical results what has yet to be explored. Do sustainability ethics provide the policy maker with instruments, methodologies or techniques that are new or unexplored in the sense that they are different from the ordinary and more or less well known policy instruments such as law, economic incentives, creation of markets, voluntary codes of practices, public administration-civil society voluntary agreements…etc.?

Sometimes the role of sustainability ethics is unclear. For example, the message from Jacques Chirac, President of the Republic, to the participants to the participants of the Third Global Forum on Sustainable Development (December 2, 2005) justifies the role of the new French constitutional Environment Charter not as an example of the positivization of sustainability ethics at the level of soft law constitutional principles [which is really what the Charter is all about] but exactly as the opposite, as the policy ground to start applying new ethical instruments: “The Environment Charter, incorporated into the French Constitution on 1 March this year, proclaims this for the first time in a national constitution: the environment is no longer just the heritage of the nation, but the `common heritage of human beings. This statement of principle has very direct consequences both for individual behaviour and for public policy. Its inclusion in the preamble to the Constitution, alongside the 1789 Declaration on the Rights of Man and, for economic and social rights, the preamble to the 1946 Constitution means that the Charter's environmental imperative applies to everyone. This major innovation in our basic law lays the foundations of a proper set of sustainable development ethics. Ethics where everyone takes responsibility (…) The new sustainable development ethics must be applied first of all in the fight against climate change…”.

So the role of ethics,… is it simply to be the foundation of policy and new policies and /or policy-making procedures that need  to be put in place? or, to the contrary, ethics, applied ethics, are a new instrument or set of instruments that need to be developed as implementation mechanisms of the new policy of sustainable development?

Let us see how the typical policy instrument of sustainable development, the national [and inter- or supranational] sustainable development strategies, have dealt with this matter.

THE SUSTAINABLE DEVELOPMENT STRATEGIES REVISITED.

Item 8.7 of Agenda 21 (Rio 1992) was the first international instrument to suggest the adoption of a national strategy for sustainable development: “Governments, in cooperation, where appropriate, with international organizations, should adopt a national strategy for sustainable development based on, inter alia, the implementation of decisions taken at the Conference, particularly in respect of Agenda 21”.  Advancing what should be its contents, Agenda 21 stated that “this strategy should build upon and harmonize the various sectoral economic, social and environmental policies and plans that are operating in the country. The experience gained through existing planning exercises such as national reports for the Conference, national conservation strategies and environment action plans should be fully used and incorporated into a country-driven sustainable development strategy. Its goals should be to ensure socially responsible economic development while protecting the resource base and the environment for the benefit of future generations. It should be developed through the widest possible participation. It should be based on a thorough assessment of the current situation and initiatives.”

It may surprise the analyst, but Agenda 21 contains no  mention at all about the fostering of new ethics or anything similar. Policy, with its traditional instruments, to which the soul-making that ethics imply is usually alien, is what the national strategies on sustainable development should be all about.

Ten years later, the Word Summit on Sustainable Development (hereinafter WSSD) expressed a different view: “We acknowledge the importance of ethics for sustainable development, and therefore we emphasize the need to consider ethics in the implementation of Agenda 21.” (Item 5 bis of the Plan of Implementation).

So, it looks as if ethics did come a long way in ten years and should now be incorporated as a tool for the implementation of Agenda 21 policies. It is as if the experience of 27 years (1979-2006) of writings in the interdisciplinary journal “Environmental Ethics”, the unsung hero and advocate dedicated to the philosophical aspects of environmental problems, did finally make their day in Johannesburg.

Has this appeal to ethics been a sudden event or a slow process? Is it that in the process of drafting, approving and implementing the national sustainable development strategies, civil society and governmental committees have reached the conclusion that ethics needs to become an integral part of the policy instruments, one that has a specific role? And what is then that role?

Agenda 21 was certainly aware of the potentiality of ethics building as part of its implementation process, and did take them into account in three basic areas of action: in strengthening of the role of business and industry (Chapter 30); in strengthening the role of enabling the scientific and technological community, which includes, among others, engineers, architects, industrial designers, urban planners and other professionals and policy makers, to make a more open and effective contribution to the decision-making processes concerning environment and development (Chapter 31); and in shaping the content of education at all levels (Chapter 36).

Why ethics were to be limited to these areas (besides the need to take care of ethical considerations, when fostering sustainable development policies, as a limitation to action rather than as a guidance to action: sustainable development policies are to be designed and implemented enabling persons and communities “to exercise the rights [established by these new policies] in keeping with their freedom, dignity and personally held values, taking into account ethical and cultural considerations”) remains unclear but at the same time it makes full sense: education as a public service is the ideal policy instrument for “soul making”, and  the convenience to reinforce policy in the private sector not through stiff mandates but via voluntary codes of ethics is a universally practiced mechanism were new policies run counter to the usual economic behaviour. More intricate is the appeal to change in professional practice by the scientific and professional community. We will return to this point at the end of this paper.

The relevant paragraphs of Agenda 21 were the following:

30.26. Business and industry, including transnational corporations, should ensure responsible and ethical management of products and processes from the point of view of health, safety and environmental aspects. Towards this end, business and industry should increase self-regulation, guided by appropriate codes, charters and initiatives integrated into all elements of business planning and decision-making and fostering openness and dialogue with employees and the public.

31.1. The adoption and implementation of ethical principles and codes of practice for the scientific and technological community that are internationally accepted could enhance professionalism and may improve and hasten recognition of the value of its contributions to environment and development, recognizing the continuing evolution and uncertainty of scientific knowledge.

31.8. Increased ethical awareness in environmental and developmental decision-making should help to place appropriate priorities for the maintenance and enhancement of life-support systems for their own sake, and in so doing ensure that the functioning of viable natural processes is properly valued by present and future societies. Therefore, a strengthening of the codes of practice and guidelines for the scientific and technological community would increase environmental awareness and contribute to sustainable development. It would build up the level of esteem and regard for the scientific and technological community and facilitate the "accountability" of science and technology.

31.10 b. Strengthening and establishing national advisory groups on environmental and developmental ethics, in order to develop a common value framework between the scientific and technological community and society as a whole, and promote continuous dialogue; c. Extending education and training in developmental and environmental ethical issues to integrate such objectives into education curricula and research priorities.

36.3. Education, including formal education, public awareness and training should be recognized as a process by which human beings and societies can reach their fullest potential. Education is critical for promoting sustainable development and improving the capacity of the people to address environment and development issues. While basic education provides the underpinning for any environmental and development education, the latter needs to be incorporated as an essential part of learning. Both formal and non-formal education are indispensable to changing people's attitudes so that they have the capacity to assess and address their sustainable development concerns. It is also critical for achieving environmental and ethical awareness, values and attitudes, skills and behaviour consistent with sustainable development and for effective public participation in decision-making. To be effective, environment and development education should deal with the dynamics of both the physical/biological and socio-economic environment and human (which may include spiritual) development, should be integrated in all disciplines, and should employ formal and non-formal methods and effective means of communication.

36.10.d. Countries should stimulate educational establishments in all sectors, especially the tertiary sector, to contribute more to awareness building. Educational materials of all kinds and for all audiences should be based on the best available scientific information, including the natural, behavioural and social sciences, and taking into account aesthetic and ethical dimensions;

36.15. National professional associations are encouraged to develop and review their codes of ethics and conduct to strengthen environmental connections and commitment. The training and personal development components of programmes sponsored by professional bodies should ensure incorporation of skills and information on the implementation of sustainable development at all points of policy- and decision-making.

Paradoxically, ten years later, the 2002 WSSD Plan of Implementation, notwithstanding its initial grandiloquent declaration of item 5 bis, does not go any farther. It is surprising how ethics as a tool for sustainable development is only mentioned in the area of sustainable tourism (calling for a Code of Ethics in that sector) and for the actions to be implemented in the region of Latin America and the Caribbean (as if the rest of the world would not need it !!):

Sustainable development in Latin America and the Caribbean

The Initiative of Latin America and the Caribbean on Sustainable Development is an undertaking by the leaders of that region that, building on the Platform for Action on the Road to Johannesburg 2002, which was approved in Rio de Janeiro in October 2001, recognizes the importance of regional actions towards sustainable development and takes into account the region’s singularities, shared visions and cultural diversity. It is targeted towards the adoption of concrete actions in different areas of sustainable development, such as biodiversity, water resources, vulnerabilities and sustainable cities, social aspects (including health and poverty), economic aspects (including energy) and institutional arrangements (including capacity-building, indicators and participation of civil society), taking into account ethics for sustainable development.

What is the status of ethics in the national and international strategies themselves?

Certainly the industrial and business sector did take seriously using codes of ethics as the main instrument to include sustainability within the realm of corporate social responsibility. The examples are so numerous than one could almost say, without any fear of being wrong, that sustainability ethics are the “property” of the corporate world. The simple exercise of typing those two words (“sustainability”, “ethics”) in any web searcher will throw the researcher into a myriad of corporate web pages, both at the collective (industrial and professional associations) or individual (specific companies) corporate level.

The incorporation of ethics in education policies has also been quite substantial since the world's first intergovernmental conference on environmental education was organized by UNESCO in cooperation with UNEP in Tbilisi, Georgia (USSR) from October 14-26, 1977 (see, for example, for Europe, the UNECE Strategy for Education for Sustainable Development, Committee on Environmental Policy, High-level meeting of Environment and Education Ministries, Agenda items 5 and 6, Vilnius, 17-18 March 2005). It is somehow surprising that the Council of Europe’s actions in the area of EDC Policies (Education for Democratic Citizenship) have not yet incorporated sustainability as one of its main dimensions. In any case, it is clear that, in this area of education, the policy and actions in which the Council of Europe could get engaged could be of great relevance, but its design and analysis fall out of scope of the mandate of this Think Tank.

Finally the awareness of the role of sustainability ethics in the conduct of professionals and scientists is a major point that deserves full attention, but at it was said before, it will be analyzed later.

Focusing on Sustainable Development Strategies  across Europe, the showings are the following:

EU Strategies.

The 2002 EU’s Sustainable Development Strategy adopted at Gothenburg ignores completely the ethical implications [The only mention of ethical issues is the acknowledgement that new technologies raise ethical issues: 4.6. Technology at the service of society. (…) Emerging technologies create new opportunities but sometimes also new risks and in some cases — such as genetics— new ethical questions”] . Only in the stakeholders´ debate was the issue raised, certainly by the corporate world and to a lesser extent by some ministers (but only –and exclusively- as it relates to energy policy, which is expressive of the importance –or rather, the total ignorance of its relevance-  that Europe attributes to policies based in values that need much more the ethical component, such as biodiversity):

Rapporteur: Mr Hanns R. Glatz, Delegate of the Board of Management, DaimlerChrysler

There was clearly full agreement on the desirability of sustainable development. But as a speaker pointed out, one big difficulty with this concept is that its sense is very difficult to render in all languages. Linked to this may be the question of the place for ethical values, which were briefly mentioned. Clearly, a lack of shared ethical values makes it difficult to define common objectives. Everyone agreed that there is no single solution that can solve all the problems at one stroke. At best, one should fix performance standards and abstain as far as possible from prescribing precise measures; leave the individual actors to work out how to get there, for example through popular campaigns, voluntary agreements, self-regulation, a whole range of possibilities. Education, as all agreed, was crucial, but education without ethical values did not work.

Ms Birgitta Boström, State Secretary, Swedish Environment Ministry

(…) One of the themes, climate change and clean energy, raised a crucial — and in its essence ethical — issue for the future development of the globe. Europe had to act now. It was not possible to wait for others.

The two 2005 Communications from the Commission to the Council and the European Parliament, that set the path towards a more serious Strategy, the 2005 Review of the EU Sustainable Development Strategy: Initial Stocktaking and Future Orientations [COM(2005) 37 final, 9.2.2005], and the Draft Declaration on Guiding Principles for Sustainable Development [COM(2005) 218 final, 25.5.2005], totally ignore the role of ethics.

Other international instruments have been more careful with the ethical approach. The 2004 Nordic States Strategy, “Sustainable Development, New Bearings for the Nordic Countries”, focuses on ethics-driven policies in several sectors: consumers´ policy, biotechnology policy, financial sector, food safety, food quality and agriculture.

2.4. Consumer pressure can be a powerful tool in the drive to change production and consumption patterns. Subjecting products and services – or the selling enterprise itself – to environmental, social and/or ethical demands, can give business enterprises whose operations have a detrimental impact on the environment and society an incentive to reduce that

2.5.3 Nordic government authorities must exercise their ownership function, take environmental and ethical considerations clearly into account in all activities and financing operations, and seek to promote a sense of social responsibility in the enterprise sector.

5.3.3 Efforts must be made to clarify the ethical and social effects associated with the use of genetically modified organisms (GMO) – including its impact on biodiversity. Deter-mining to what extent GMOs can coexist with conventionally and ecologically grown varieties is a growing challenge. Closer research cooperation is vital in this connection.

8.1. The concept food quality is used here in a general sense and, hence, covers all the characteristics and qualities of a given food, including the traditional quality concepts such as food safety, physical and chemical composition, taste and conditions pertaining to health and safety. In addition, food quality also includes indirect ‘characteristics’ such as production conditions, labelling, ethics, animal protection, environment and working environment. (…)Nations like the Nordic countries that maintain a high level of protection thus come under a certain amount of pressure regarding assessments where other non-scientific risk assessment aspects – including “other legitimate factors”, such as the application of Good Agricultural Practice (GAP), or the wellbeing of animals and ethical concerns – come into play. The Nordic countries continue to actively participate in cooperation on Codex standards in order to attain standards that ensure a high level of health protection, and include other legitimate factors.

11.2. Nordic plant and animal health is relatively good, which facilitates the production of high-quality agricultural products. Increasing importance is being accorded to ethical values and attitudes in animal husbandry. Good plant and animal health is essential to the competitiveness of Nordic agriculture. Action areas have been defined with a view to deepening, supplementing and strengthening national and EU initiatives and where the Nordic countries have benefited from Nordic cooperation. (…)The Nordic Council of Ministers has adopted a number of declarations on a range of issues including food safety (Greenland Declaration, 2002) international forestry policy, and access and rights to genetic resources (Kalmar Declaration 2003). Special theme studies have helped the Committee of Senior Officials to define policy aims for continued action in areas such as organic farming, pesticides, Nordic cooperation on research and education, and ethical labelling.

11.4.10 Animal health, animal welfare and ethical aspects

The health and wellbeing of animals and ethical animal husbandry are important competitive factors for Nordic agriculture.

The OECD approach gives relevance to the ethical dimension. Its Resource Book, that provides guidance on how to develop, implement and assess national sustainable development strategies (NSDSs), and which is based on an analysis of past and current practice, in both developed and developing countries, to undertake comprehensive approaches to sustainable development, in particular, in the learning provided by the eight countries directly involved in a project on NSDSs undertaken by the Development Assistance Committee (DAC) of the OECD, as well as on the work of a wide range of organizations, such as the Capacity 21 initiative of UNDP, the UN Department of Economic and Social Affairs (DESA), the IUCN, the International Institute for Environment and Development (IIED) and many other groups, focuses on the need of a shared value system as the precondition for sustainable development decision making:

Principles and frameworks for decision-making

GOOD DECISIONS SHOULD BE BASED ON ACKNOWLEDGED VALUES

Values invariably condition strategy decisions, whether expressed overtly (eg in constitutional rights, principles or codes of practice) or implicitly in the decision. Those values that predominate not only determine the outcome of decision processes, but also the acceptability of the decisions to various stakeholders, and thus the likelihood of their implementation. Arriving at a workable consensus on a value system to underpin sustainable development is one of the most challenging areas of NSDSs and one where considerable further attention is required.

There are two broad dimensions to the issue. First, given the trans-border and regional nature of many tasks of sustainable development and the global reach of multinational corporations (for good or bad) and international agreements, there is the need for a shared ethical system which transcends national boundaries and cultures, and yet can also find resonance and expression in local cultural systems (…). Second, there is a need to consider issues of international equity, which, for example, currently bedevil debate over implementation of the Kyoto Accord.

These ethics-based policies concern also the strategic aspects related to communication, information and education:

The participatory aspects of a strategy require an ethically motivated, educated and socially aware public. However, in many areas, the public may not understand, or simply may not be interested, in the issues of ‘sustainable development’ as currently discussed in many national-level fora. Clearly, a two-way process of education and consultation is needed so that the sustainable development concept is understood in local terms.

Nevertheless, when the Resource Book goes into details of possible lines of action, it only draws examples of ethic-based policies from developing countries, such as the use of ethics by India (biodiversity related policies) and  South Africa  (broad cross-cutting policy).

At the national level, European countries offer a diverse picture. National sustainable development strategies from countries such as Ireland, Sweden or The Netherlands ignore ethics. Germany’s only focuses on the need to build new consumers´ ethics. 

The Strategy of the Czech Republic 1) includes as one of its main strategic goals “to develop ethical values in accordance with European cultural traditions”; 2) leans on a set of principles, “the most important of which is the principle of respect for human life (the ethical principle), nature and the values of civilisation and culture”; and 3) declares as specific strategic goal in the field of research and development and education to attain a high level of education in society, and thus to ensure the competitiveness of Czech society and develop ethical values in accordance with European cultural traditions.

The UK Strategy, in the opposite side,  takes a piecemeal approach 1) by reinforcing the Ethical Trading Initiative (ETI); 2) by concentrating on the role of ethics in the business sector (“Success will depend on their ability to meet growing consumer [household and supply chain] expectations of higher environmental and ethical standards and to cut out the negative impacts of growing material resource consumption”; “the challenge of sustainable consumption raises the corporate social responsibility debate to a whole new level, in which businesses must consider the implications, for their business model and product range, of a shift towards more resource-efficient and ethical consumption practices”); and 3) by setting as a principle that the ethical preferences of their constituencies should guide the charity investing institutions such as the pension funds.

The Austrian and French Strategies adopt the same piecemeal approach. The French Strategy places special emphasis, in a more classic way, as suggested by Agenda 21, in the area of research (“The new trends in scientists´ raising “shall integrate ethics-related and democratic debate concerns into scientific activities. It is the responsibility of the public authorities to organise relations between scientists and citizens in order to recreate links of confidence”; “Ethical issues in public research action: to propose a coherent vision and organisation of ethical issues, deliberative forms within the scientific community and with third parties, the responsibility of researchers, the consequences for research of the evolution of the position of expert appraisal in society”) and in the private sector (ethical investment by funds and other financial institutions -Socially Responsible Investment-,  including the environmental ethics as part of the corporate ethics).

But an innovative approach of the French Strategy resides on its focus on capacity building on sustainability ethics –or rather, expertise building- as specific action plan: “Expertise is a fundamental element of safety. It must be high quality, thorough and independent. Instructions shall be given to public establishments and bodies for a better organisation of expertise. This latter shall also benefit from the promotion of best practices in the private sector. The implementation of a standards-based (ethical, legal and economic), at the interface between the expertise of facts and of management and decision systems shall be favoured”. Expertise should include “a set of ethical standards, facilitating the full recognition of the expertise by the various parties (declaration of interest, publication of opinions, possibility for minority opinions to express themselves, respect for the confidentiality of proceedings, justification of positions and points of view, etc.); and the absence of interference between the expert and the decision maker”).

The Austrian Strategy has the same piecemeal approach too. 1) It focuses on the ethical issues raised by the new technologies; uses an ethics-based specific policy for changing consumers´ behaviour (“Consumer behaviour is influenced by the economic environment and is learned in the social context. Therefore, the central starting points for changing consumption behaviour are education, sensitisation and information. Education for sustainability comprises both the ethical and value dimension of the sustainability concept, and also the specific skills necessary for its implementation”); 2) it also promotes the maintenance of ethics investment funds [In particular the Austrian specific section of the January 2002 brochure “Mehr Wert: Ökologische Geldanlagen” (More Value: Ecological Investments) published by the German Federal Ministry of the Environment, which offers an overview of the investment market in the German-speaking world , and the platform “Ethical-ecological Investment”, which was founded in 2001 by the Austrian Association for Environment and Technology (ÖGUT), serves as an information hub for relevant activities in Austria”]; 3) it promotes codes of ethics in tourism; and 4) it places a significant burden of the sustainable ethics building on education (“For children and adolescents to develop into independent and self-confident personalities, it is of great importance to continue promoting educational and youth work outside school, especially to promote the development of intellectual, social and physical skills and to convey ethical and religious values.”)

A particular exercise of soul-making is devised by the Austrian Strategy by getting involved with the religious community:

Sustainability and Religion(s) – A Pilgrimage

The aim of the project “Sustainability and Religion(s) – A Pilgrimage” is to stimulate the ideas of sustainable development through various measures of cooperation between various world and natural religions and philosophies, between the sciences and schools, and between schools and the public, and to discuss the results of sustainability research in the context of theological and/or pedagogical reflection: What are the thematic challenges of our common future?

“Sustainability and Religion(s)” will therefore be the theme of a conceptual and actual pilgrimage on which environmental-ethical concepts will be developed further, equity and responsibility for the universe will be concretised, practical projects (especially in schools) will be stimulated and promoted, and intercultural learning opportunities will be created.

Responsible for implementation: Federal Ministry of Education, Science and Culture; project carrier: Austrian Institutes for Religious Education, and Institute for Integrative Tourism and Leisure Research.

A very similar piecemeal approach is adopted by Norway, whose Strategy promotes voluntary certification schemes and ethical labelling, addressing both corporate responsibility and consumers´ policy, and sponsors corporate responsibility that includes all sustainability related dimensions and the criteria drawn up by the Initiativ for Etisk Handel (Norway’s ethical trading initiative), and attributes to education policy the main role on sustainable ethics building:

“Schools also have a role to play in bringing up children and young people and instilling ethical and cultural values in them. They must impart an understanding of the fundamental values on which any society must be based, at a time when our population is becoming more and more diversified. This trend makes tolerance more important than ever before, and also makes it more difficult to gain acceptance for certain ethical norms.”

It is significant too, the relevance that it attaches to the conservation of the identity of Norwegian culture and to cultural landscapes and environments.

The Swiss Strategy does not use ethics as a tool for specific policies but explicitly acknowledges the philosophical and ethical base of sustainable development:

"This definition (of the Brundtland Commission) is based on an ethical and philosophical orientation. Responsibility towards the future, based on equity between generations and regions of the world, must replace the global power to dispose of the future. For sustainable development presupposes the satisfying of fundamental needs of all human beings today and in the future, and in decent and fair conditions. By ratifying the proceedings of the Rio Conference, the community of nations, including Switzerland, has recognised the compulsory nature of the guiding idea that this principle of responsibility represents for the future. This responsibility implies the ethics of a balance of rights and duties between equal partners, whether persons or countries".

As a conclusion, it is clear that the model of piecemeal approaches, in particular in education, technology-research, and practices of the private sector that stems directly from Agenda 21 has become deeply rooted in the European States policy planning via National Strategies. Consumer policy (different from consumer protection; but somehow a sort of soul-making through the provision of information) is quite common. Community building as social sustainability ethics is rare (with the socio-cultural exception of Norway and the case of the UK), expertise building (in a broader sense than the reach-out for the scientific community) has a clear focus in France; and working with the religious community is an Austrian innovation. The Nordic Strategy adds animal welfare to the dimensions of sustainability (a well known component of environmental ethics, which sometimes is so rich that raises multiplicity of new paradigms by itself, such as animal rights versus animal welfare ethics).

Of all of them, only the Swiss and, specially, the Czech Strategies recognize that, in essence, sustainability is about new philosophy and ethics to the extent, in the Czech case, that the building itself of  new ethics is formulated as a goal of the Strategy.

Finally, what seems to be a trend is also the increasing and ubiquitous importance of biodiversity ethics, both on its anthropocentric (the environmental services and social/identity values that it provides for present and future generations) and biocentric versions (the intrinsic and inherent value of all forms of life).

The EU Strategy seems specially oblivious of the ethics component and of the possibility of using ethic-based policy tools.

AN  AGENDA FOR THE COUNCIL  OF  EUROPE ?

This last assertion about the lack of ethics-based components of the EU policy is understandable. Although more thought needs to be given to this fact, it seems to be due to two reasons.

First, sustainability is recognized by Community law as a legal principle, drawing its legitimacy directly form the Constitutive Treaties (see the parallel paper by for this Think Tank meeting prepared by Prof Prieur). Thus, once the principle itself reaches constitutional status, the ethical foundations can even to some extent fall into oblivion, since constitutional law ensures its operational quality through various ways which this paper does not need to explore.

Second, while national or even regional (e.g. the Nordic countries) strategies can afford to contemplate ethics-building, since identity is most easily acknowledged at the national level, the European Union has traditionally left that realm of the ethics of identity and soul building within the core of sovereignty that its member States will always keep (art 5 of the European Constitution Draft Treaty).The fact that the ethics of sustainability are by definition cosmopolitan and universal should run counter to this reasoning, but one must not forget that even the most sacred principles of human wide culture with full value-based content, human rights, have had a long history before they have been formally and officially called to become part of the EU system.

This is, to the contrary, the traditional role of the Council of Europe. Its involvement in human rights, culture and education renders the institution particularly suitable to approach these issues without subverting its mandate. The problem is how to face it.

Concerning the first role of sustainability ethics, as foundation or base of the policies of sustainability, one way to link ethics and policy would be to formulate the ethical foundations of sustainable development as principles. This manner of proceeding is very usual, and it is highly recommended, if it weren’t for the fact that once principles are formulated they tend to become soft law immediately. If formulated as guiding voluntary principles, or some similar variant, the legal effect could be prevented while trust on their operational quality is consolidated.

The problem that the formulation and declaration of principles entail in this area is that descending from the dimensions of the ethics of sustainable development (economic, social, environmental, cultural and participatory democracy) to the more concrete expressions of the said dimensions, the lack of consensus might make the task quite difficult.

At the same time, since the abstract level of the pillars or dimensions of sustainability runs contrary to its effective implementation and to the design of real sectoral sustainable policies, the formulation of semi-abstract or more detailed principles ought to be a must. Europeans are expecting practical information about sustainable development. And, although many of them have not heard about the three classic dimensions or pillars (much less about the five), remaining in that sphere, as the 2005 draft principles of the EU has  done, might be  probably counterproductive. It simply might make people become fed-up with sustainability jargon that has neither bite nor any concrete consequences.

The problem, for example, with the European Union Guiding principles, is that they are so abstract that they lack operationalyzing capability, leading to the impression that nothing new wants to be done.

But, on the other side, it is striking how, notwithstanding the existence of a general consensus on what sustainability is about (see previous Section II of this paper), very few instruments include the five dimensions or pillars, and much less are they all balanced.

For example, the detailed analysis of what can be considered the emerging  European “law of sustainable development” done by Prof Prieur (parallel paper to this meeting) shows that the social and political dimensions are almost non-existent, and that the cultural dimension is very poor.  It is even shocking that notwithstanding that the 1998 Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters asserts itself in the preamble as a basic instrument of sustainability, its implementation at the domestic level is not considered sustainable development policy.

So, one of the tasks of the Council of Europe could consist on reinforcing consensus around the five dimensions; and doing it not by formulating them as principles (they lack the minimum of operationality that principles require) but as what they really are: dimensions or issue-areas that sustainable development policies should touch upon. This approach could help the member states of the Council of Europe to identify gaps or imbalances in their policies.

From there onwards more detailed principles could be explored and built-in and more potential on the ground programs could be identified.

Concerning these principles, which as it was said before, should be more operative and concrete, there are two possible alternatives. A first proposition could consist in a set of principles that, instead of defining the content of the five dimensions, tries, building upon them,  to focus on their operational side.

An example of the first approach would consist in the formulation of clear-cut principles, the minimum list of which ought to be the following (the list, at this stage, attempts to have only an explanatory function):

1) to take into account the future generations or the intergenerational equity

2) to promote the solidarity with the peoples and communities which are below the poverty level

3) to integrate environmental considerations in all sectoral policies

4) to recognize that biodiversity loss cannot take place, although exceptionally net compensation ought to happen if the other pillars of sustainable development are forwarded (economic growth and/or quality improvement; social cohesion and distributive justice; cultural identity; community empowerment; and other environmental goods or services).

5) to advance the WEHAB (access to water, energy, health, food, and biodiversity) goals by the universalization of services whenever economic growth takes place, and to use them as conditions that need to be improved by all types of economic planning or market regulation.

6) all planning activities in non-urban habitats should take into account the ecosystem approach.

7) a «guardian» that represents the interests of future generations should be institutionalised.

8) the territory where development projects or master planning takes place should be conceived as  a bioregional space, with landscapes and cultural identity elements, and not only as the place where things happen.

The second alternative approach could attempt to  provide more workable and operational principles. For example,

1) the dimensions of sustainable development and the values that they incorporate can never be used to decrease the level of effectiveness of environmental and antidiscrimination laws; or

2) environmental impact studies for EIA processes should add sustainability analysis in terms of review of long-term impacts, and how community social fabric is affected; or

3) all living things, and in particular, threatened ecosystems and species, have intrinsic value and are not supposed to be utilized exclusively for human progress, unless overriding values are expressly stated and balanced, with explicit analysis of why human uses are of such importance in that specific case; or

4) impact on cultural landscapes of bioregional relevance should always be evaluated through special ad hoc techniques that properly take into account the vulnerability of the territory and go well beyond the traditional visual impact analysis and evaluation of EIA procedures; or

5) animals are sensible beings, whose life disruption needs to be explicitly motivated and submitted to the “burden of the proof” principle in the process of public project approval or private project permitting; or

6) GIS methodologies for the assessment of the non-intentional impact on discrete minorities should become standard practice for the projects that are submitted to mandatory EIA; or

7) the distributive justice effect of projects or plans submitted to mandatory EIA should be evaluated by assessing the beneficiaries of the income or public service generated and/or provided by the project or the activities proposed by the plan; or

8) a system of sustainability indicators (whether publicly promoted for regulated industries or services, or self-established at the collective professional level or at the individual company level) should be routinely used by all organizations; or

9) all regulations and bills submitted to Parliament should be accompanied by a sustainability report evaluating its relationship (whether neutral, positive, or negative) to the National Sustainable Development Strategy; or,of course,

10) the precautionary principle formulated in ethical terms: “When human activities may lead to morally unacceptable harm that is scientifically plausible but uncertain, actions shall be taken to avoid or diminish that harm”.

Concerning also the more operational aspect of sustainability ethics, the one that focuses on ethics or soul-making as a specific instrument of sectoral policies, the educational policies should be the special focus for action by the Council of Europe. Certainly, the contents of the Council of Europe EDC (Education for Democratic Citizenship) policies should be revisited so that sustainability is added as an essential element.

An additional line of action of the Council of Europe could consist in engaging not only on  traditional education but also on expertise building and re-training and awareness-raising for technological professionals and scientists the core of whose professional ethics still reflects the traditional paradigm of pretending that scientific or technical knowledge is value-free. Several times in this paper have some comments on this issue been postponed.  The reality is that where applied ethics have rendered the most important results in terms of actual building of sustainability it has been precisely in this realm (E.Hargrove, Taking Environmental Ethics Seriously[16]), in particular, the analysis of the values involved by applying ethics methodologies should play an undisputable role in what S. Beder[17] has qualified as “the grey area” of decision-making:

                

Courtesy of Sharon Beder, Engineers, Ethics and Sustainable Development

As to specific sectoral ethics based policies, there does not seem to be broader consensus beyond using value-based ethics codes a) in the research/technology/science communities; and b) in the private economic sector (which includes financing, production, distribution/commerce and consumer related activities and consumer information policies). The  Council of Europe could evaluate to which extent these areas are part of its own traditional agenda and have them re-analysed under the light of the new sustainability paradigm.

One final word, that leads to a whole new world where action by the Council of Europe could be at its best but whose economic consequences might be too far-fetched. The issue of the connection of the sustainability ethics with human rights has been conspicuously absent in this paper until know. The broad and abstract character of the pillars or dimensions of sustainability does not render sustainable development an easy matter to be articulated as human rights ethics/law, unless the notion itself of human rights becomes extremely devaluated because of the inefficiency of the lack of easily justiciable factual situations. To the extreme that the Council of Europe has been totally incapable of advancing the right to the environment as a human right (leaving aside the isolated ECHR cases), pretending that a right to sustainable development can be articulated as a human right would be a clear inconsistency with the previous rejection by the Council of Ministers of the proposal to incorporate to the European Convention of Human Rights some kind of environmental rights (even procedural rights similar to those established by the Aarhus Convention were expressly rejected !!).

Nevertheless, the most blatant violations of the ethical principles that are at the core of sustainable development coincide with what in other parts of the world has been conceptualized as ideal or typical situations of “environmental justice”; it brings together integrated action [which is conceptualized, lived and applied as action based in policy and ethics, not in legal claims] in situations where there is a simultaneous problem of civil rights, distributive justice, environmental ethics, public participation, social justice (understood as influence of low-income and minority persons in policy making), and ecological sustainability (see, e.g. the literature and case studies on “environmental justice” cited in E.Alonso, A. Recarte & J.-Benford[18]). “Environmental justice” policies are applied where all those consequences can be visualized in the faces of real persons in communities both urban (whether “banlieus”, or industrial ruins or poor housing built in or around contaminated sites where there is no hope of investment of public authorities gentrifying action plans) or rural (poor agricultural immigrant-based or traditionally poor communities). The logo of the environmental justice policies is expressive of the extent to which sustainable development policies and “environmental justice” can be brought together by focusing in the most disadvantaged communities in Europe.

In a different paper (CO-DBP/EE (2003) 3) I had the opportunity to minimally confront the reasons why “environmental justice” policies are alien to Europe. Of course, the “pride” of the ECHR system based on the fact that it was one of the first systems to incorporate the right to a clean environment as a human right dissolves in a vacuum when it is balanced with the disregard of the said ECRH system in approaching situations of collective environmental degradation which in many cases acts as a social divide in Europe although we might enjoy looking somewhere else.

The more the work of the Council of Europe has made progress on sustainable development policy analysis the more obvious it results that the Council of Europe could have an almost perfect “niche” in innovating the European intellectual and social conundrum via a reflexive assessment of whether these “environmental justice” policies, or other policies similar to them, can be promoted in Europe through a small grants program or through a program designed to stimulate the establishment of “environmental justice” programs by its member States, at least on a voluntary basis. It is true that the portfolio of the Council of Europe Development Bank can be evaluated as if this policy were already in place, in particular after the new eligibility criteria for loans approved in its Administrative Resolution 1480(2004) [The CEB promotes sustainable social development through three sectoral lines: (i) strengthening social integration (46% of disbursements 2000 - 2004), (ii) developing human capital (24%), (iii) and managing the environment (30%)]. But one thing is a bank whose operations are structured in a project request basis and a totally different thing is to build a policy as such, allowing for the empowerment of discrete communities themselves while in the same process, and at the same time, a policy of access by those communities or groups to many more resources, economic and otherwise, is articulated.

Thus, if work on “on the ground” programs could be launched, it could focus on these discrete minorities subject to environmentally degraded conditions that allow, with the additional elements, to conceptualise the situation as one of “environmental injustice”.  

***

INTERGOVERNMENTAL STRATEGIES FOR SUSTAINABLE DEVELOPMENT:

EXPERIENCES AND PROSPECTS FOR THE COUNCIL OF EUROPE

By Paul-Marie Boulanger

Institut pour un développement durable, Belgium

1. Introduction

The need to adopt sustainable development strategies was declared as early as 1992 in Agenda 21 adopted at the United Nations Conference on Environment and Development (UNCED), specifically in Chapter 8 entitled “Integrating environment and development in decision-making” (Item 8.7):

“8.7 Governments, in cooperation, where appropriate, with international organisations, should adopt a national strategy for sustainable development based on, inter alia, the implementation of decisions taken at the Conference, particularly in respect of Agenda 21. This strategy should build upon and harmonise the various sectoral economic, social and environmental policies and plans that are operating in the country. The experience gained through existing planning exercises such as national reports for the Conference, national conservation strategies and environment action plans should be fully used and incorporated into a country-driven sustainable development strategy. Its goals should be to ensure socially responsible economic development while protecting the resource base and the environment for the benefit of future generations. It should be developed through the widest possible participation. It should be based on a thorough assessment of the current situation and initiatives.”

Agenda 21 unfortunately gives no other guideline as to the desirable content or form of a sustainable development strategy (SDS), at best stating that the idea is to “harmonise” various sectoral economic, social and environmental policies and plans that are operating in the country, that it should be based on a thorough assessment of the current situation and initiatives, and in so doing secure “the widest possible participation”.

Though directed at governments, this appeal has been heeded at other institutional levels, and intergovernmental bodies and institutions have also embarked on the framing and implementation of such strategies. However, in this endeavour both they and the national governments have been unable to rely on the support of tested methodologies or handbooks of best practice. They have had to innovate, experiment and feel their way. The novelty of the process, the diversity of the contexts and the brief track record of the experiments in hand are such that it would still be very rash to presume to arrive at any precepts, rules and procedures guaranteeing the success of a SDS, and so this ambition will not be pursued here.

On the other hand, it seemed to the writer that describing and comparing a few strategies currently operating in the world at large and in Europe could not only reveal to us the intrinsic characteristics of this type of action, but also provide an overview of the backdrop against which a prospective Council of Europe SDS would be constrained to take shape. Being unable to envisage a complete conspectus of everything being done nationally and internationally on the SDS front, I have elected to confine the discussion to three strategies which appeared to me essential or exemplary. In the “essential” category, let us classify the United Nations “Millennium Development Goals” (MDGs) strategy, and at European level the 2001-2004 strategy of the European Union at present undergoing revision. In fact I consider that these cannot be overlooked by any new European intergovernmental strategy for sustainable development.

A far less widely known strategy has also been singled out, the one implemented by the 11 Baltic States as from 1998 under the designation “Baltic 21”. Besides the virtue of effectively mobilising 11 member countries of the Council of Europe and of the European Union, this initiative was found exemplary in many respects.

Naturally, within the limits set and working with such a restricted sample, one cannot claim to achieve more than simply do justice to the richness of the new instruments of governance constituted by sustainable development strategies, and hope to arouse the desire to further their success and that of the global design which drives them.

2. The EU’s sustainable development strategy (2001-2004)

The European Union is probably one of the few international institutions whose purview is sufficient to let it devise a sustainable development strategy capable of binding its members[19], which makes it most interesting to examine the efforts made by the Commission in this field.

The EU’s sustainable development strategy was initially formulated at the Göteborg European Council in June 2001, in accordance with an undertaking made at the review conference held 5 years after the United Nations Conference on Environment and Development (UNCED)[20]. Moreover, the Treaty of Amsterdam[21] concluded in 1997 established sustainable development as a central objective of the European Union as stipulated in Articles 2[22], 3 and 6[23] of the consolidated treaty.  Accordingly, the Helsinki European Council (December 1999) invited the Commission “to prepare a proposal for a long-term strategy dovetailing policies for economically, socially and ecologically sustainable development to be presented to the European Council in June 2001”[24]. In fact the document proposed by the Commission for the Göteborg Council met this request incompletely as it covered only the “internal” component of the strategy, the external one being announced as requiring separate treatment. The latter component was actually adopted at the Barcelona European Council (2002), a year later, and its main conclusions were presented the same year at the World Summit on Sustainable Development in Johannesburg.  The whole proposal is being brought up to date, however. In the course of 2005, the Commission is to present a new strategy which will fully incorporate the internal and external dimensions. For the time being, only the guiding principles of this strategy have been disclosed.[25]

2.1. The European Union’s conception of sustainable development between 1997 and 2005

As stated above, the Treaty of Amsterdam in Articles 2 and 6 does mention sustainable development. However, Article 2 really only speaks of “harmonious, balanced and sustainable development of economic activities” besides other goals such as employment, social protection, gender equality and competitiveness, and Article 6 merely indicates that sustainable development calls for integration of environmental protection requirements into Community policies and activities. It is quite plain that in 1997 the European Union still experienced certain difficulties in defining sustainable development, since it was spoken of only in connection with economic activities and placed on the same footing as a high level of employment, gender equality, protection and improvement of the environment, competitiveness, etc.

Conversely, there is no longer any sign of sustainable development, only sustainable growth, in the Lisbon strategy (March 2000) aimed at making Europe “the most competitive and dynamic knowledge-based economy in the world, capable of sustainable economic growth with more and better jobs and greater social cohesion”. And although the Lisbon strategy nonetheless attached significant importance to social cohesion, the environment vanished from the agenda. The Stockholm Council (March 2001) had to be awaited for its existence to be remembered. Sustainable development strategy would then face the task of recovering the environmental dimension so as to amplify (and consolidate) the political commitment made in Lisbon.

In the Commission’s own words, this acknowledged the need for “a long-term strategy dovetailing policies for economically, socially and ecologically sustainable development”.[26] In fact the 2001 strategy deferred sustainable development as a long-term objective, that of “a society that is more prosperous and more just, and which promises a cleaner, safer, healthier environment – a society which delivers a better quality of life”.

Despite the patching-up performed in Stockholm, the existence of two separate strategies, the “Lisbon” and the “Göteborg” (sustainable development) was to create confusion and inconsistency between the different policies of the Union. That was moreover the opinion of the European Economic and Social Council:

“The two strategies must be coherent under the overarching objective of long-term sustainable development. This means that sustainable development objectives must permeate all policy areas of the Lisbon strategy …”[27]

2.2. The main thrusts of the EU sustainable development strategy 2001-2005

Although the Commission announces the delivery of a “more comprehensive and ambitious” new sustainable development strategy comprising long-term orientations, clear objectives and effective monitoring machinery that would make more of the synergies between complementary actions and policies; still, the initial strategy cannot be called devoid of all these elements, being centred on:

-     identification of sustainable development related problems, namely:

1. Global warming;

2. Appearance of antibiotic-resistant strains of diseases and longer-term effects of using hazardous chemicals;

3. Poverty (in Europe);

4. Ageing of the population;

5. Loss of biodiversity, growing waste volumes and soil erosion;

6. Transport congestion and regional imbalances.

-     settinglong term objectives to meet these threats[28]:

·                Limit climate change and increase the use of clean energy;

·                Address threats to public health;

·                Manage natural resources more responsibly;

·                Improve the transport system and land-use management.

–      For each of these main objectives there was a corresponding, subordinate “headline objective”. As far as possible, these are quantified and sometimes carry target dates. This is the case, for example, as regards introducing a minimum proportion of biofuels in road transport, reducing greenhouse gas emissions under the Kyoto Protocol but also after its period of validity; setting up a European system of tradable emission permits, etc. It must be acknowledged, however, that the specific objectives do not form the majority; most of them are fairly general and some are even rather vague.

–        Proposals to improve the effectiveness of the policies and actions of the European Union. More specifically, this involves:

·         Enhancing policy coherence by such means as ex ante assessment of all economic, social and environmental impacts, not only within the EU but also on third countries, of all the Union’s policies, plans and projects.

·         Ensuring that prices integrate all costs: the “rightness” of prices is presented as a factor of incentive to    the development of more efficient, less polluting new products and services. That presupposes removing     subsidies conducive to wasteful use of natural resources, and putting a price on pollution. In general, the    Commission will give priority …. to market-based approaches that provide price incentives,      whenever these are likely to achieve social and environmental objectives in a flexible and cost effective     way”[29].

·         Invest in science and technology for the future: for this purpose, it is necessary to ensure that legislation does not hamper innovation or erect excessive non-market barriers to the dissemination and use of new    technology.

·         Improve communication and mobilise citizens and business. The objective is to achieve a more open       policy-making process, establish “earlier and more systematic dialogue” with the various stakeholders   and finally with the citizens, in order to combat disaffection towards politics and encourage popular      “ownership” of the goal of sustainable development.

·         Take enlargement and the global dimension into account: recognising that growing production and     consumption in the EU “increase the pressure on shared global environmental resources”, the Commission should ensure that internal and external policies actively support efforts by other countries,     particularly those in the developing world, to achieve development that is more sustainable.

–        the implementation of a reviewing process to assess the progress achieved and adjust the strategy if the need is felt. There is also the decision to carry out a systematic, comprehensive review at the beginning of each new Commission term of office. However, no list of indicators was selected to   evaluate the progress accomplished in the pursuit of the strategic aims. In fact the appearance of the first specific document dealing with the European SDS monitoring indicators was delayed until     February 2005 to see come out, and then it was not a communication from the Commission but a     communication to it by Commissioner J. Almunia[30].

2.3. The external dimension of the strategy

Entitled “Towards a global partnership for sustainable development”[31], it acknowledged that globalisation and liberalisation of trade had not equally benefited all countries and that poverty, unemployment, inequalities and exclusion remained the common lot of too many populations. The Commission concluded that it was necessary to strike a better balance between global market forces on the one hand and global governance and political institutions on the other. The challenge to be met was therefore one of “integrating markets, governance and internal policies through a global partnership”. Accordingly, the European Union added six new objectives to those defined in Göteborg:

-                 Harnessing globalisation: trade for sustainable development.

-                 Fighting poverty and promoting social development.

-                 Sustainable management of natural and environmental resources.

-                 Improving the coherence of European Union policies.

-                 Better governance at all levels.

-                 Financing sustainable development.

Here too, few objectives are quantified apart from those associated with the MDGs, whose importance is recalled.

2.4. Evaluation of the EU’s 2001-2004 strategy

The European Union’s 2001-2004 strategy was unarguably marred by numerous imperfections. Let us mention the following:

-          lack of “bottom-up” vertical integration or rather the fact that the relationship between the internal strategy and the Union’s worldwide commitments was covered by a separate declaration, hence by a separate strategy;

-          lack of “top-down” vertical integration, that is ignorance of the national and sub-regional sustainable development strategies on which some Member States were already embarked;

-          lack of horizontal integration, ie of coherence between the Lisbon and the Göteborg strategies, as well as between the latter strategy and the sectoral policies such as the CAP. The Commission quickly realised this problem, at least as it affected its “external” policy, and was thus prompted to include in its external strategy an objective “Improving the coherence of the Union’s policies”;

-          failure to mobilise civil society and other stakeholders;

-          vagueness of many of the objectives pursued, and absence of quantified targets;

-          on top of all this, there are no doubt too many objectives and actions, making the strategy too ambitious to be really credible;

-          a minimalist and, frankly, diffident conception of sustainable development.

Despite its imperfections, some of which are understandable for a first attempt[32], the SDS nevertheless seems to have allowed a number of advances and definite achievements to be garnered. This is how, for instance, the objective of setting up a European system for trading emission permits gave rise to a directive called “Emission Trading” (2003/87/EC) which took effect on 1 January 2005. The same applies to the use of a minimum volume of biofuels in road transport, leading to Directive 2003/30/EC, etc.

Document COM(2005)37[33] and appendix[34] provides a full and critical analysis of the advances and inadequacies of the 2001-2005 strategy, incorporating the comments issued by the Economic and Social Council and the reactions of many associations, organisations and private individuals who came forward during the public consultation held from 1/08/2004 to 31/10/2004 by the Commission on the European sustainable development strategy[35].

2.5. Towards a new European strategy

The new communication on the principles of sustainable development[36] signals an incontestable development compared to the earlier state of affairs. This time, the Commission adopts sustainable development as “a key principle of all its policies and action”. An undeniable change of register is also discerned in the view taken of the well-known “three pillars” of sustainable development[37]. So much so that while economic growth remains a fundamental reference, it now seems harnessed more to social and environmental objectives. The Lisbon agenda thereby seems to lose its pre-eminence and to appear rather as combination of means (with short and medium term effect) to attain medium and long term ends which are defined in relation to sustainable development.

The draft sets four key objectives for the EU:

-          Environmental protection: safeguard the earth’s capacity to support life in all its diversity;

-          Social equity and cohesion: “promote a democratic, socially inclusive, cohesive, healthy, safe and just society with respect for fundamental rights and cultural diversity that creates equal opportunities and combats discrimination in all its forms”;

-          Economic prosperity;

-          Meeting our international responsibilities.

The fourth objective evidences determination to give sustainable development strategy back its external dimension, in contrast with the approach followed in 2001 and 2002, although this can be regarded as more of an undertaking than an objective in the true sense. As to the guiding principles, there are ten:

1.     Promotion and protection of fundamental rights;

2.     Intra- and intergenerational equity;

3.     Open and democratic society;

4.     Involvement of citizens;

5.     Involvement of business and social partners;

6.     Policy coherence and governance;

7.     Policy integration;

8.     Using best available knowledge;

9.     Precautionary principle;

10.   Making polluters pay.

11.  

Thus the Commission plainly appears to have learned the right lessons from the initial experience. Indeed, the thrusts of the new strategy in preparation indicate a resolve:

-           to make sure that the various strategies implemented are more coherent with each other;

-           to stop handling the inward strategy and the one directed at the outside world as separate concerns;

-           to make sure that policies are more coherent with each other and with the sustainable development strategy through the mandatory and effective application, to all policies of any importance, of an anticipatory procedure to assess their impacts in terms of sustainable development[38];

-           lastly, to develop a set of sustainable development indicators allowing proper objective and quantified monitoring of the progress achieved.

On the other hand, the European Union does not seem to have taken cognisance of what is a major source of confusion and inefficiency in sustainable development strategies in Europe: lack of co-ordination between national, sub-regional and European strategies. Attention has been drawn to the fact that the European SDS had taken shape in complete ignorance of various SDSs in progress at national and also regional level[39] in the Member States. It must nevertheless be conceded that the ignorance is mutual. Neither did the national SDSs – including those adopted after the Göteborg Council - seek coherence or complementarity with the European SDS. Only Belgium (which took on board the six European objectives in formulating its 2nd Federal Plan for sustainable development), Portugal and Sweden make explicit reference to the European SDS, the last two countries very sketchily, however.[40] While it is understandable (yet deplorable) that the Member States should hesitate to invoke the European strategy[41], it is harder to grasp the reasons why the European SDS could have been formulated without any reference to the national strategies. In fact the virtual dismissal of this problem in the two documents which the Commission devotes to the study of its strategy[42] augurs ill for the new strategy in preparation.

3. The Millennium Development Goals (MDGs): A world strategy for sustainable development?

In September 2000, 147[43] world leaders gathered in New York adopted the “Millennium Declaration”[44] stating their collective commitment to sustainable development and poverty eradication. The declaration’s operational dimension bears the name “Millennium Development Goals”, in accordance with the strategic document drawn up by the United Nations Secretary General as a guide to the implementation of the Millennium Declaration.

3.1. Principles and values

The declaration proclaims the importance of a number of values as the foundation of international relations:

“• Freedom. Men and women have the right to live their lives and raise their children in dignity, free from hunger and from the fear of violence, oppression or injustice. Democratic and participatory governance based on the will of the people best assures these rights.

• Equality. No individual and no nation must be denied the opportunity to benefit from development. The equal rights and opportunities of women and men must be assured.

• Solidarity. Global challenges must be managed in a way that distributes the costs and burdens fairly in accordance with basic principles of equity and social justice. Those who suffer or who benefit least deserve help from those who benefit most.

• Tolerance. Human beings must respect one other, in all their diversity of belief, culture and language. Differences within and between societies should be neither feared nor repressed, but cherished as a precious asset of humanity. A culture of peace and dialogue among all civilizations should be actively promoted.

• Respect for nature. Prudence must be shown in the management of all living species and natural resources, in accordance with the precepts of sustainable development. Only in this way can the immeasurable riches provided to us by nature be preserved and passed on to our descendants. The current unsustainable patterns of production and consumption must be changed in the interest of our future welfare and that of our descendants.

•Shared responsibility. Responsibility for managing worldwide economic and social development, as well as threats to international peace and security, must be shared among the nations of the world and should be exercised multilaterally. As the most universal and most representative organization in the world, the United Nations must play the central role”[45].

3.2. Aims, objectives, targets and indicators: a hierarchical structure

The declaration establishes six main aims:

-          Peace, security and disarmament;

-          Development and poverty eradication;

-          Environmental protection[46];

-          Human rights, democracy and good governance;

-          Protecting the vulnerable;

-          Meeting the special needs of Africa;

-          Strengthening the United Nations.

-         

Each of these aims is subdivided into intermediate objectives, eight of which are given particular prominence.

1. Alleviating extreme poverty and hunger: to halve, by the year 2015, the proportion of the world’s people whose income is less than one dollar a day and the proportion of people who suffer from hunger.

2. Ensuring primary education for all: by 2015, to enable boys and girls alike to complete a full course of primary schooling.

3. Promoting gender equality and the empowerment of women: to eliminate gender disparities in primary and secondary education, by 2005 if possible, and at all levels of education by 2015 at the latest.

4. Reducing under-five child mortality by two-thirds, between 1990 and 2015.

5. Improving maternal health: to reduce the rate of maternal mortality by three-quarters between 1990 and 2015.

6. Combating HIV/AIDS, malaria and other diseases: by 2015, to have halted the spread of HIV/AIDS, and begun to reverse its current trend, and to have brought malaria and other major diseases under control and begun to reverse the current trend.

7. Ensuring a sustainable environment: to integrate the principles of sustainable development into country policies and programmes and reverse the loss of environmental resources: to halve by 2015 the percentage of the population without sustainable access to a safe drinking water supply. By 2020, to have achieved a significant improvement in the lives of at least 100 million slum dwellers.

8. Establishing a global partnership for development:

-          To persevere with the introduction of an open, equitable, rule-based, predictable and non-discriminatory multilateral trading and financial system.

-          To address the special needs of less advanced countries, landlocked countries and small island developing States.

-          To deal comprehensively with the debt problem of developing countries, through national and international measures designed to make their debt sustainable in the long term.

-          In co-operation with the developing countries, to develop and implement strategies that give young people a real chance to find decent and productive work.

-          In co-operation with the pharmaceutical industry, to make essential drugs available and affordable in developing countries.

-          In co-operation with the private sector, to ensure that the benefits of new technologies, especially information and communication technologies, are available to all.

For each of these objectives, specific targets are defined. For example, the first has two subordinate targets:

-          Target 1. To halve, between 1990 and 2015, the proportion of the world’s people whose income is less than one dollar a day.

-          Target 2. To halve, between 1990 and 2015, the proportion of people who suffer from hunger.

Each target has one or more corresponding indicators, eg for target 1 of objective 1 there are the following indicators:

-           Proportion of the population on less than a dollar per day in purchasing power parity;

-           Poverty gap ratio;

-           Share of poorest quintile in national consumption.

In aggregate, the eight objectives are paired with eighteen targets and forty-eight indicators.

3.3. Monitoring procedures and indicators: activation on a global scale

One of the original features of the MDGs is their involving all UN organisations plus a number of international institutions in the monitoring and evaluation of the strategy. In fact the following institutions are involved: World Bank, UNCTAD, United Nations Framework Convention on Climate Change, Department of Economic and Social Affairs of the Secretariat of the United Nations, United Nations Children’s Fund, United Nations Population Fund, International Monetary Fund, United Nations Educational, Scientific and Cultural Organisation, International Labour Organisation, World Health Organisation, United Nations Food and Agriculture Organisation, Joint United Nations Programme on HIV/AIDS, United Nations Environment Programme, United Nations Development Programme, United Nations Human Settlements Programme, Organisation for Economic Co-operation and Development, World Trade Organisation, International Telecommunication Union and Inter-Parliamentary Union. The Economic Commission for Africa, the Economic Commission for Europe, the Economic Commission for Latin America and the Caribbean, the Economic and Social Commission for Asia and the Pacific and the Economic and Social Commission for Western Asia are also associated.

MDGs are reviewed at two levels:

- Country level: The UN bodies, the OECD development assistance committees and in many cases the World Bank and the International Monetary Fund provide support for the compilation of reports on the Millennium Development Goals for each developing country. These reports are more and more frequently the outcome of collaboration by the national government, the private sector and civil society.

- World level: The reports drawn up at country level supplement the Secretary General’s reports on the implementation of the Millennium Declaration, the first of which was presented to the General Assembly in October 2002. These overall reports include a chapter on the Millennium Development Goals and recapitulative statistics for each objective, according to worldwide or regional projections. Drawing on the contributions of all United Nations agencies, funds, programmes and regional commissions, as well as the World Bank, IMF, WTO and OECD, the UN Department of Economic and Social Affairs co-ordinates the analysis of the data and keeps a comprehensive database of world statistics current.

3. 4. Evaluation

Whatever the results scored on the ground by the MDG strategy[47], it will at least have given an extraordinary boost to better integration of development-specific activities, programmes and methods, not only within the United Nations system but also in its links with other institutions. It will also have allowed the reinvigoration of the processes whereby the texts adopted at the organisation’s major summit conferences and meetings are implemented.

According to the report of 27/08/2004 by the Secretary General of the United Nations on the implementation of the Millennium Declaration:

“The Millennium Development Goals have also reshaped the way the United Nations addresses development issues by improving coherence and coordination at the country level. …, the Goals have helped to galvanize the follow-up to the outcomes of major United Nations conferences and summits; including the Beijing Declaration and Platform for Action, the Plan of Implementation of the World Summit on Sustainable Development, the Brussels Programme of Action for the Least Developed Countries for the Decade 2001-2010, the Declaration of Commitment on HIV/AIDS,13 and the Programme of Action for the Sustainable Development of Small Island Developing States.

48. Similarly, many United Nations entities are using the Millennium Development Goals framework for monitoring their own activities, such as the United Nations Educational, Scientific and Cultural Organization Education for All programme; World Health Organization (WHO)/United Nations Children’s Fund monitoring of child and maternal health; and the measurement of results for food security, hunger, nutrition and eradication of rural poverty by the Food and Agriculture Organization of the United Nations (FAO), the International Fund for Agricultural Development (IFAD) and the World Food Programme (WFP). Agencies and programmes are also using the Goals as a point of reference for overall reporting and analytical work, as can be seen, for example, in the World Health Organization annual World Health Report and the United Nations Development Programme (UNDP) Human Development Report.

49. Similarly, the World Bank and the International Monetary Fund are using the Millennium Development Goals as a framework for their work, and in coordination with UNDG have adopted a shared approach to country-level assessments of the actions required to achieve the Goals within the context of poverty reduction strategy papers and national development strategies.”

The capability of the MDGs for achieving this integration apparently stems from their structured and quantitative make-up. The hierarchical organisation into aims, objectives and quantitative targets affords a clear, coherent and reasonably simple framework that greatly enhances its compelling character. Furthermore, the existence of measurable indicators directly linked with the objectives makes for an unchallengeable ongoing evaluation of the progress achieved.

The MDGs do not purport to be explicitly or predominantly a sustainable development strategy. Some readers may thus ask why they have nonetheless been included in the present sample. The reason is that there is little doubt in my mind as regards the genuine relevance of the MDGs to sustainable development, although they only acknowledge it in passing. By assigning absolute priority to the needs of the most underprivileged members of the present generation, while taking care to preserve the environmental foundation on which future generations will have to create the conditions for their own well-being, they clearly follow on from the Brundtland report which, let us recall, approached sustainable development in terms of reducing North-South inequalities and lastingly fulfilling human needs.

4. The “Baltic 21” strategy

4.1. Early “multi-stakeholder” mobilisation

The sustainable development strategy of the Baltic Sea riparian countries was adopted in June 1998 following a process commenced in 1996 in the framework of the Council of the Baltic Sea States, making this region the first regional intergovernmental organisation to assign itself common objectives and to undertake joint actions for sustainable development. The preparation of the strategy was entrusted to the Environment Ministers of the member states who were joined by the ministers in charge of spatial planning, which no doubt accounts for the weighting of the environmental component in the strategy.

The process is directed by a committee made up of members of the governments of the Council of the Baltic Sea States[48], the European Union, NGOs, intergovernmental organisations such as HELCOM[49], VASAB[50], the International Baltic Sea Fishery Commission, the Nordic Council of Ministers and several international financial institutions (World Bank, EBRD, etc.). In addition, several organisations of civil society and networks of towns and municipalities have been associated with the process from the outset. For instance, among the business organisations or professional associations, there are the World Business Council for Sustainable Development, the Baltic Fishermen's Association and the International Chamber of Commerce; local authorities are represented by the Baltic Local Agenda 21 Forum, the Union of the Baltic Cities, the ICLEI (Local Governments for Sustainability), and the NGOs include the WWF, the Coalition Clean Baltic, etc.

4.2. Concentration on advanced integration, and a predominantly environmental mind-set

Underpinning the strategy, besides respect for the “polluter pays”, precautionary and subsidiary principles, the main elements encountered are concern for integration and fulfilment of the undertakings made in the context of the Framework Convention on Climate Change, the Convention on Biodiversity, the Convention on Long-Range Transboundary Air Pollution and the protocols deriving from them, the Treaty of Amsterdam plus a number of conventions and protocols specifically relating to the management of the marine environment and fisheries.

The strategy is founded on the pursuit of the following aims:

-           A safe and healthy life for current and future generations;

-           A co-operative and prosperous economy;

-           Local and regional co-operation based on democracy, openness and participation;

-           Biological and ecosystem productivity and diversity are restored or maintained;

-           Pollution of the atmosphere, land and water is contained within the carrying capacity of nature;

-           Renewable resources are efficiently used within their regeneration capacity;

-           Non-renewable resources are efficiently used and renewable substitutes are sought;

-           High awareness of the elements and processes leading to sustainability at all levels of society.

In fact the chief preoccupation remains clearly environmental, so much so that social cohesion and economic efficiency are presented as means of preserving the wealth and health of the natural surroundings.

4.3. Diagnosis and predictive vision

One of Baltic 21’s original traits is its underlying predictive vision, based primarily on a diagnosis of the initial situation ostensibly characterised by a high average income level, highly skilled manpower and plentiful natural assets. However, the diagnosis also identifies socio-economic disparities deemed unacceptable, and excessive environmental pressures.

As to the socio-economic disparities, the diagnosis concludes that it is necessary to raise the standard of living principally in the southern part of the region (Estonia, Lithuania, Latvia, Poland, Russia) where the market economy has yet to develop, with the goal of reducing the disparities in standard of living between the Southern and the Northern zones of the region.

As to the strain on the environment, attention is drawn to excessive acidification and eutrophication, greenhouse gas emissions above an acceptable level, and unsustainable exploitation both of non-renewable resources (phosphorus, energy) and renewable resources (fish stocks, forests …).

This diagnosis establishes the baseline conditions for a “backcasting” exercise, which involves setting a medium or long term sustainable development objective and envisaging one or more transitional scenarios whereby the initial real situation could evolve into the imaginary target situation. In the case under consideration, a single transitional scenario was devised, likened to a reference scenario or a “Business as Usual” scenario and termed a “Conventional Development Scenario”. The normative goal serving as the end-point for the scenario depicting transition toward sustainable development is described as a situation dominated by socio-economic equity, full employment, reduced greenhouse gas emissions, acidification of soils and waters within safe tolerance levels, and the return of the Baltic Sea to ecological balance.

The two scenarios are compared on the basis of quantitative indicators relating to population, GDP, energy and water consumption, greenhouse gas emissions, and agricultural yields and production.

4.4.  Thirty actions divided into three groups

Thirty actions have been defined, and are divided into three groups:

-           Cross-sectoral actions.

-           Sectoral actions.

-           Actions related to spatial planning.

The cross-sectoral actions consist of:

·          Increased production and use of renewable energy.

·          Organising regional forums and networks for sustainable development;

·          Establishment of demonstration areas and pilot projects for proving the feasibility of sustainable development.

·          Co-operation between towns and communities on local sustainable development issues.

·          Procurement of technologies conducive to sustainable development.

·          Information for sustainable development;

·          Raising the level of consumer awareness of the issues involved.

The sectoral actions are conducted in 8 sectors: agriculture, energy, fisheries, sustainable forest management, industry, tourism, transport and education. Responsibility for monitoring each sector is borne by one or more governments. For example, the agricultural sector is looked after by Germany and Poland, energy by Denmark and Estonia.

– Spatial planning actions concern the implementation of the Stockholm Declaration on sustainable spatial development policy, further development of the Integrated Coastal Zone Management programme, and integration of the “Baltic 21” strategy with the European spatial planning programmes.

It should be noted that the objectives remain purely qualitative except where they correspond to quantitative commitments already entered into under the terms of earlier documents.

4.5. Appraisal

The “Baltic 21” strategy definitely constitutes a model of governance on an intergovernmental and “multi-stakeholders” basis. It is also the only one to be founded on a long term vision built up by the scenario method. Most of the goals no doubt lack sufficient precision, but credit should be given to the concern to avoid covering the same ground as the existing conventions and protocols, and instead to weld these into a coherent whole.

5. Overview and suggestions for a schedule of requirements

This all too brief analysis of the three strategies currently in progress on the European scene and worldwide had a dual aim:

-           to help us determine what we are entitled to expect of a sustainable development strategy, the demands that it should meet;

-           to survey the strategies (other than national ones) to which a new European strategy should obviously refer, with which it should come to terms.

-          

The synoptic table below encapsulates the three strategies, using the following criteria:

-           Conception of sustainable development;

-           Underlying principles and values;

-           Long term vision;

-           Goals;

-           Intermediate objectives, quantified if possible;

-           The actions directed at the objectives (category left out of the synoptic table because of its obviousness);

-           Monitoring and evaluation machinery;

-           Indicators for measuring the progress achieved and communicating about the strategy;

-           Diagnosis of the initial situation and prognoses of its unaided development;

-           Reference to the existing strategies and policies carried on at higher institutional levels (bottom-up vertical integration);

-           Reference to the existing strategies and policies carried on at lower institutional levels (top-down integration);

-           Integration of the strategy in relation to other current strategies, programmes and policies (horizontal integration);

-           Enlistment of all stakeholders in the strategy.

These items are derived from the writer’s own interpretation of the categories put forward by the OECD in the two most important overall publications to deal with SDS at present, “Strategies For Sustainable Development: Practical Guidance For Development Co-Operation”[51] and the document entitled “Sustainable Development Strategies. A Resource Book”[52], both published in 2001.

In these documents, the OECD defines a SDS as:

       “A co-ordinated set of participatory and continuously improving processes of analysis, debate, capacity-strengthening, planning and investment, which integrates the economic, social and environmental objectives of society, seeking trade offs where this is not possible”[53]

and complying with the following principles[54]:

1.     Centred on the human needs of the populations concerned, with a view to ensuring long-term beneficial impacts on the most disadvantaged;

2.     Based on a consensual long term vision of development;

3.     Forming a comprehensive and integrated process, which signifies that they should integrate economic, social and environmental objectives and, in case of insoluble conflict, negotiate the necessary trade-offs which must take into account the entitlements and needs of future generations;

4.     Realistically targeted with clear budgetary commitments;

5.     Based on comprehensive and reliable analysis;

6.     Comprising arrangements for monitoring, assessment and turning experience to account;

7.     Committing the highest authorities and the lead institutions, and specifying the roles of each;

8.     Building on existing capacity;

9.     Genuinely participative.

What is termed “horizontal integration” in the synoptic table actually corresponds to two principles propounded by the OECD, principles 3 and 8. It is needless to recall the importance and the significance of principle 3. On the other hand, it may be helpful to linger over principle 8, “build on existing capacity”. Indeed, as was pointed out in introducing this paper, Agenda 21 stresses that a sustainable development strategy primarily – at all events initially – sets out to “harmonise”, that is to integrate, “the various sectoral economic, social and environmental policies and plans that are operating in the country”[55].

What does “integrate” mean in this context?

-           First of all, to render compatible, meaning non-contradictory, the goals, objectives and practical arrangements which are adopted under these various sectoral policies. It will be seen that this may happen by way of a rank-ordering of these various objectives, and may in many cases require “trade-offs” which would not have been negotiated were there no reference to sustainable development. It is quite plain that this has not always been clearly understood by those governments which have introduced a sustainable development strategy. Judging by I. Niestroy’s analysis[56] of the sustainable development strategies implemented by the European Union Member States, it is inescapable that in this respect many of them have construed Agenda 21 not as an invitation to bring coherence to the various sectoral policies already in hand but rather to superimpose on these programmes, plans and strategies an additional layer consisting of an action plan for sustainable development, or of a sustainable development strategy. The usual outcome is then the opposite of the desired one since it amounts to adding an extra source of confusion and/or incoherence to what is already there. The European Union has been exposed as not entirely blameless in this respect either, with the chaotic cohabitation between the Lisbon and the Göteborg strategies.

-           The rank-ordering of objectives, with the trade-offs that may be negotiated, implies the existence of a fundamental core of values and principles forming a standard by which the internal coherency of goals, objectives and tools pertaining to the various sectoral policies should be diagnosed and providing the basis on which to rule in the event of incompatibility. The sustainable development concept is the repository for this fundamental core, and the necessary source of the integrative principle. However, the sustainable development concept on its own does not suffice, given its arguable character[57]. To effect the coherency diagnosis, it is necessary in addition to deploy a conception[58] of sustainable development suited to the features of the society under consideration, to the institutional level contemplated, etc. From this standpoint, none of the intergovernmental strategies described in this document is really satisfactory.

In addition to this horizontal integration, the writer considers it important to look to the vertical integration of the SDSs, that is their inclusion in the strategies adopted at the upper institutional levels (bottom-up integration) and their compatibility with the SDSs which are adopted beforehand by the lower institutional tiers (top-down integration).

It will be seen from the synoptic table that none of the strategies analysed fulfils the whole of the criteria laid down. An ideal strategy should really combine the strong points of each individual strategy, thereby blending together the “goals-objectives-targets-indicators” system of the MDGs, the bottom-up approach, the long term perspective, the analysis of existing capacity and the mobilisation specific to “Baltic 21”, the collective learning capability displayed by the Commission in evaluating its 2001-2005 strategy and defining its future SDS, etc. An additive to the blend will be systematic recourse to the “Sustainability Impact Assessment” procedures[59], which have institutional status in the European strategy alone and which the writer regards as a condition sine qua non for integrating the relevant policies under a rank-ordered classification of SDSs.

	MDGs	European Union SDS 2001-2004	Baltic 21
Conception of sustainable development	Emphasis on development more than sustainability Environment Sustainable patterns of production and consumption Poverty as an obstacle to SD	Balanced economic growth = Lisbon strategy + environment	Emphasis on environmental sustainability and socio-economic inequalities
Principles and values	- Collective responsibility - Freedom - Equality - Tolerance (diversity) - Solidarity - Nature-consciousness		“Polluter pays” Precaution Subsidiarity
Long term Perspective		“A society that is more prosperous and more just, … promises a cleaner, safer, healthier environment … a better quality of life”	Vision of a “Sustainable Baltic Sea Region 2030”
Goals	-Peace, security, disarmament -Development, poverty eradication -Protecting our common environment -Human rights, democracy, good governance -Protecting the vulnerable -Meeting Africa’s special needs -Strengthening the UN	- Limiting climate change and making more use of clean energy sources; - Limiting risks to public health; - Managing natural resources more responsibly - Improving the transport system and spatial planning	A safe and healthy life for current and future generations. A co-operative and prosperous economy. Local and regional co-operation based on democracy, openness and participation. Biological and ecosystem diversity and productivity restored or maintained. Pollution of the atmosphere, land and water not to exceed the carrying capacity. Efficient use of renewable resources within their regeneration capacity. Non-renewable resources efficiently used; renewable substitutes promoted. High awareness throughout society of the elements and processes leading to sustainability.

Objectives Fields of action	1) Reducing extreme poverty 2) Primary education for all 3) Gender equality 4) Reducing infant mortality 5) Improving maternal health 6) Combating HIV/AIDS, malaria and other diseases 7) Ensuring a sustainable environment 8) Establishing a world partnership for development	- Economic development - Poverty and social exclusion - Population ageing - Public health - Climate change and energy - Production and consumption patterns - Management of natural resources - Transport - Good governance - Global partnership	- agriculture - energy - fisheries - forestry - industry - tourism - mobility 30 sectoral actions + 7 cross-sectoral actions (Joint Actions) + 3 actions relating to spatial planning
Quantified	18 targets quantified for 2013	Some
Indicators	48 indicators	Work in progress	35 cross-sectoral indicators + sectoral indicators
Diagnosis- Prognosis	Based on the 48 indicators	No	Yes + reference scenario Development scenario
Vertical integration (bottom-up)	Not applicable	WSDD, MDGs	Implementation of international conventions (climate, biodiversity, fisheries)
Vertical integration (top-down)	Partnership rich-poor countries Monterrey Consensus		Bottom-up approach
Horizontal integration	Co-ordination between United Nations organisations and programmes	Currently weak but promising due to “Sustainability Impact Assessment”	Intergovernmental
Enlistment of stakeholders	Entire UN system + OECD + other international institutions	Weak: forums of stakeholders have indeed been held but without senior Commission officials participating, without a report, etc.	Multi-stakeholders: national governments, regional agencies, EU, NGOs, networks of towns and municipalities, WB, etc.
Monitoring-evaluation	Millennium Goals Project Secretary General’s reports Indicators	Annual monitoring but no indicators	Two-yearly sectoral reporting Overall reporting every 5 years

6. Which SDS for the Council of Europe?

Analysing and criticising three actual examples of sustainable development strategies implemented at an intergovernmental level gives a better insight into the kind of schedule of requirements that should be met by a possible sustainable development strategy at Council of Europe level. As the last entrant in an arena already crowded with national, regional and worldwide SDSs, one specific to the Council of Europe could not, at all events, afford to disregard the teachings of past experience in this field. Moreover, it must be deemed an advantage to come in after others have done the spadework, even if this position carries the responsibility of not repeating bygone errors and at least equalling if not excelling the pioneers.

Excelling those who have gone before means first and foremost that all the elements identified in the table above should be understood: a shared conception of sustainable development, of the guiding principles and values, a diagnosis of the initial situation identifying the obstacles to sustainable development, a long term outlook and goals, operational objectives quantified to the fullest extent possible, actions that are planned and if possible budgeted to achieve the objectives, indicators and procedures with which to measure the progress made and adapt the strategy to the rate of progress as well as to the changing environment, doing all this with due care to tie in with the other strategies in existence at the world level as well as at the national and sub-regional levels and with a view to the widest possible mobilisation.

It would be presumptuous of me to define this strategy myself; that kind of exercise far exceeds an individual’s abilities and would in any case be at variance with the spirit of sustainable development. I shall settle for a few comments on what I consider the most important items, at the present stage in the analysis, of the proposed schedule of requirements, working from a few of the 9 principles put forward by the OECD and mentioned on page 18 of this paper.

6.1. Buildingon existing capability: vertical and horizontal integration

We have seen that one of the main criticisms that can be levelled at the European Union’s SDS is its “splendid isolation” from the national SDSs implemented by its Member States. True, the same can be said about some of the latter for having devised their own strategies without any reference to the European strategy.

But the Council of Europe is faced with the necessity of taking into account not only the existing national SDSs but also that of the European Union since the Council has in common with it a large number of members directly concerned by the Union’s SDS and by world strategies such as the MDGs. The problem is finding out how a SDS specific to the Council of Europe can fit into the conglomerate.

Besides the risk of overlaps and inconsistencies between strategies devised at different levels but involving the same basic units, ie member states[60], a specifically Council of Europe SDS faces a risk of hyper-complexity and internal saturation ascribable to the proliferation of conventions, resolutions, declarations, agreements and other texts issued by the Council of Europe as an entity. In his “Draft European Charter on general principles for environmental protection and sustainable development”, Professor Prieur gives the figure of 800 texts. The SDS ought not to have the appearance of just one more document, adding to the complexity of the system instead of enhancing its readability, hence its effectiveness. This points to the overriding need to build on the existing capability and to ensure that it aids simplification of the Council of Europe system of undertakings, though without forfeiting any of its wealth. In the aforementioned text, Professor Prieur plants important signposts for bringing together in a coherent whole the general principles set forth in all these documents. It is true that from this standpoint the concept of sustainable development affords no mean potential for integration, though with some danger to the concept as such. By “overloading the boat”, by expecting the concept to register virtually everything, is it not likely to be emptied of all real substance, to be worn out before its time? But the existence of such a risk should not make us desist from attempting this integration which, in the writer’s opinion, only the sustainable development concept is still capable of validating. Still, for safety’s sake I think it would be necessary to display a great deal of rigour and, in particular, for the sake of sustainable development itself, to consent to a certain rank-ordering of the existing undertakings and thus of the principles and values on which they are founded. [61]

This twofold need for vertical and horizontal integration has been very properly recognised as regards the spatial planning policies in the “Guiding Principles for Sustainable Spatial Development of the European Continent”, principally in paragraphs 2 and 3 of chapter VI. I consider that the principles proposed for effecting this integration of spatial planning policies should be readily applicable to sustainable development.

6.2. “Based on a consensual long term vision of development”

The analysis of documents such as the “Revised Strategy for Social Cohesion”[62] and the “Guiding Principles for Sustainable Spatial Development of the European Continent”[63], and the digest made by Professor Prieur of the general principles operating in the various texts endorsed by the Council of Europe, shows that in the Council of Europe there patently exists, failing a consensual long term vision of development, at least a common conception of development on which to build such a vision.

The specificity of this conception, if compared to the European Union’s for example[64], lies in:

-           The importance attached to freedoms and human rights (civil, political, economic and social) both as foundations and as sureties for the welfare of Europe’s populations;

-           Recognition of the importance of the State’s role in creating and maintaining suitable conditions for social cohesion;

-           Recognition of the risks which social inequalities and disparities pose for social cohesion and thus – social cohesion being defined as “the capacity of a society to ensure the welfare of all its members”[65] – for the population’s potential welfare.

-           The pre-eminence given to human development rather than economic growth[66], the first being akin to ends while the second is akin to means;

-           Commitment to devices of social solidarity;

-           The importance attached to ethics and to responsibility in establishing a cohesive society;

-           Recognition of the importance of the question of society’s meaning, the sense of belonging and commitment, and the role of collective action.

Moreover, another of the Council of Europe’s peculiarities is the importance which it attaches to the European cultural heritage and its diversity, a diversity imperilled by socio‑economic and technological development and needing to be preserved on the same footing as the environmental heritage. The idea of a landscape of cultural significance, entering into the “Guiding Principles”, also faithfully reflects the profound interweaving of the cultural and the environmental aspects once a territorial outlook on development is adopted.

In short, it is fair to say that the vision of development underlying the acts of the Council of Europe is distinctive because of the emphasis placed on two dimensions that are usually forgotten or given short shrift in national, European and global SDS: culture[67] and polity. Indeed, the latter ingredient generally appears only in the somewhat reductive form of governance. The view of polity as an agency for democratically defining a common conception of a worthwhile life now seems to be scarcely upheld, except in the Council of Europe. The other international institutions, and many European Union Member States, have visibly adopted a far more liberal view of the State and polity as a mere device for regulating markets, for refereeing contradictory private interests and delivering public benefits such as security and justice[68].

This distinctive feature should be reflected in whichever Council of Europe sustainable development strategy may emerge; it could be the basis for the strategy’s claim to complementarity with the existing SDSs.

I find a conception like this very close to the one upheld by the Indian economist and Nobel Prize winner A. Sen in the work from which the Council of Europe could discover the theoretical foundations of its SDS. Sen’s conception is in fact that:

      “Development requires the removal of all forms of unfreedom that restrict people’s choice of the kind of life they value and reduce theirs active capabilities. Removal of these unfreedoms constitutes development.”[69]

The freedoms referred to here are not purely formal, meaning that their foundation in law does not suffice for them to be encountered in reality. Sen calls them “capabilities” to make it clear that they are real, effective capacities for attaining or performing the “functionings” that make up everyone’s idea of a worthwhile life.

Unfortunately Sen has invariably declined to propose his own list of these “basic” capabilities or functionings, and a list of them is indispensable if we are to evaluate the “societal arrangement” objectively by means of suitable indicators or devise development strategies. But it is striking to observe that attempts to make these conceptions framed by Sen operational finally come down to stating a number of human needs whose fulfilment is the ultimate aim of economic and technological progress.  This quite naturally brings us to the first principle of the OCDE, that a SDS must be centred on the human needs of the populations concerned.

6.3. Centred on human needs … and human rights

Satisfying the needs of the present generations while making it possible for future generations to have the necessary resources for satisfying their needs: is this not the consummate definition of sustainable development, the only truly authoritative one, the definition in the Brundtland report?[70]

The difficulty when one sets out to gear a development strategy to human needs is to specify the nature of the needs to be satisfied and the level at which they must be satisfied. How can a list of needs be drawn up without lapsing into arbitrariness and subjectivity? One answer to this certainly lies in the use of participative procedures. In other words, it is for the populations themselves to define their own needs. That is the avenue followed by M. Max-Neef in his fieldwork in Latin America and elsewhere, whose foundations are described in a book dating from 1991 entitled “Human Scale Development”[71].

Human scale development is identified in these terms: 

Such development is focused and based on the satisfaction of fundamental human needs, on the generation of growing levels of self-reliance, and on the construction of organic articulations of people with nature and technology, of global process with local activity, of the personal with the social, of planning with autonomy and of the civil society with the state[72].

Max-Neef’s perception of fundamental human needs is nevertheless quite unconnected with the definition of basic needs that dominated the development rhetoric of the years 1960-1970, one to which the Doyal and Gough[73] label of “Welfare paternalism” could be attached because in this framework the fundamental needs of populations were always defined from above (political leaders), or from outside (experts of the United Nations, the World Bank, etc.). Furthermore, the needs considered under this approach were essentially limited to elementary material needs (food, water, housing) and basic amenities (primary health care, literacy training). Thus it occluded democratic freedoms, participation in decisions, justice, etc. – partly justifying G. Rist’s[74] criticism of it.

Admittedly Max-Neef too proposes a classification of human needs –this point will be raised again – but is careful to explain that this is a tool to aid local groups’ participative self-evaluation of their development and needs. Besides, the typology which he proposes is far richer than the basic needs typology in that it distinguishes nine fundamental human needs, viz:

§   Subsistence

§   Security or protection

§   Affection,

§   Understanding,

§   Participation,

§   Leisure,

§   Creation,

§   Identity,

§   Freedom.

These nine needs are regarded by Max-Neef as universal to humanity, finite and equal in importance; the diversity of cultures through times and space is the manifestation not of different human needs but of different ways to meet them. Thus a distinction should be drawn between needs proper and their satisfiers, which are the means, varying from one culture and period to another, deployed to fulfil those needs. In general, everything conducive to the actualisation of a need can be regarded as a satisfier. Apart from goods and services in the economic sense, this may include organisations (enterprises), political structures, institutions (like the family), social custom, values and standards, etc.

The patterns of production and consumption, determined by historical and cultural influences, can thus be analysed and told apart. This is done according to a twofold selection, always arbitrary in part, singling out the needs deemed primary and, correspondingly, the satisfiers considered fit to fulfil them.

It will be observed that by asserting the universality and the finiteness of needs, one in effect contests the economists’ prevailing conception of them as being intrinsically infinite, limitless and insatiable. Indeed, this vision refutes the essential distinction, psychologically as well as ethically, between concrete needs and abstract wishes or desires (called wants). What distinguishes one from the other is the characterisation of needs as “universalisable” goals, in contrast to the singularity and subjectivity of wants, in so far as where there is question of a genuine need, its non-fulfilment can be severely damaging to the individual, and:

      Not to try to satisfy needs will thus be seen to be against the objective interest of the individuals involved and viewed as abnormal and unnatural. When goals are described as 'wants' rather than needs, it is precisely because they are not believed to be linked to human interests in this sense.[75]

Needs should thus be the starting-point, but the Council of Europe expresses itself far more in terms of rights and freedoms than needs, to such an extent that the concept does not appear even once in Professor Prieur’s draft European Charter. So the relationship between the two concepts “right” and “need” requires some exploration. This question would indubitably be worthy of in-depth analysis backed by legal skills which the writer does not possess. For present purposes, then, I shall merely offer a few thoughts for which I hasten to beg the indulgence of the legal specialists.

We have seen that what distinguishes a need from a want in Max-Neef’s view, and more clearly still in the conception of Doyal and Gough, is its characterisation as a universalisable goal. Might it not be possible to treat the various human rights (for example the right to a wholesome environment, employment, housing, etc.) as an acknowledgment, enshrined in law, of the universal character of an underlying human need?

According to this interpretation, each recognised human right would be a confirmation of:

-                 firstly, the existence of an objective or universal human need to be satisfied;

-                 secondly, the obligation, albeit not perfected, to ensure that it is satisfied.

Thus the proclamation of the right would ipso facto establish the objectiveness of the need to which it pertained. Human rights would accordingly be another way out of the quandary of defining needs subjectively, in so far as they would be regarded as needs objectified by their universal recognition.

To substantiate this intuition, one might try matching up the human rights as defined in international conventions with the lists of needs proposed by the writers who have made them central to their conceptions of development.

Table 2 proposes such a matching of Max-Neef’s 9 human needs[76] with various articles of the Universal Declaration of Human Rights. The potential of this approach for sustainable development can be readily seen. Indeed, if sustainable development consists in satisfying needs and if for example participation is recognised as one of them, then additional principles need no longer be invoked to justify recourse to participative procedures. The same applies to the need for security, which justifies the preventive and precautionary principles, etc.

Table 2. Needs according to Max-Neef and their recognition in the Universal Declaration of Human Rights.

6.4. Constituting a global, integrated process in which the interests of future generations must be considered

The draft European Charter on general principles of environmental protection and sustainable development has already gone a long way towards this objective. Referring to this document, I shall try to go a step further in categorising sustainable development issues in terms of goals, standards and principles. In fact I consider it cogent to distinguish between ethical standards and principles (ie stemming from a requirement of justice) and the pragmatic norms and principles pertaining to an instrumental rationality of action harnessed to ethical principles.

Sustainable development can be defined as the marriage of two ethical principles, one which pre-dated it and another which burst on the scene with the strict concept of sustainable development. Historically, the stipulation of intergenerational equity was tacked onto that of intra-generational equity although the latter was hard to come by. Sustainable development may thus be defined as a style of production and consumption – that is, a particular way of producing “satisfiers” of needs by combining the technological, economic, social, human, environmental and cultural assets handed down to us for the fulfilment of our needs and our aspirations – a style which would lend itself to generalisation not only spatially (worldwide: intra-generational equity) but also in time (all generations: intergenerational equity). Consequently, sustainable development can be defined as a tentative blending of new ethical demands and other, older ones (for instance, equality[77]) which they come to supplement, not supplant.

Furthermore, the consideration given to the welfare of future generations or of populations living at the far end of the earth presupposes acceptance of responsibilities towards both. Without this acceptance, the fate of either group, while not necessarily a matter of indifference to us, would not entail any obligations for us. It is therefore possible to defend the thesis that the principle of responsibility would logically come before the two principles of equity since it forms a precondition thereof.

Some of these standards or principles are translatable into legal parlance as rights or duties which are recognised and can therefore be relied upon before a judicial authority. Others, generally the more recent such as intergenerational equity, are still at the stage of awaiting integration into the legal apparatus.

Once these demands are accommodated, the next step is to define and adopt rules of conduct, for example regarding the utilisation of the stocks of assets forming the productive base of human welfare both today and tomorrow. In aggregate, these rules of conduct bear on two questions:

1.     How much can we present generations remove from each of these stocks of assets to fulfil our own needs? In other words, what can we consume and what must we save or invest to comply with the demand of intra-generational equity?

2.     Who holds which right in respect of these assets (rights of ownership and exploitation), and which rule must be adopted for sharing the proceeds of their exploitation among us?

Clearly, so far there is no fully satisfactory and unanimously accepted answer to these two sets of questions. In the meantime, we can agree on certain criteria and certain procedures to apply to our actions so that they will best meet these ethical requirements. I consider that 4 cardinal norms can accordingly be singled out to govern the patterns of production, consumption and decision-making that go with sustainable development:

-           Democracy and participation.

-           Efficaciousness: our patterns of production, consumption and decision-making must be as effective as possible, ie must effectively assist in meeting the needs and aspirations of the present generations.

-           Efficiency: this is in fact a condition for attaining the norm of intergenerational equity, as non-compliance with it would signify that at the same rate of consumption of initial assets, it would be possible to achieve states of greater well-being now and later. In practical terms, without certain knowledge of the extent to which stocks of assets are interchangeable, and in ignorance of the technological progress likely to occur, this means that it is expedient to use them as sparingly as is compatible with efficaciousness. For example, it will be imperative to use the best available technology, ie that which achieves an equivalent level of production using the least energy and raw materials while generating the least waste. Likewise, an effort will be made to use the latest and most appropriate information and knowledge. In my view, principles like integration or subsidiarity can be construed as embodying in official policies the norm of efficiency.

-           Prudence: where there are uncertainties as to significant risks, prudential rules such as the preventive and precautionary principles will be adopted.

It can be seen that these general principles have various corresponding rules and maxims of a lower order which constitute the transposition of the former into a specific field or a concrete application. Thus we do indeed have here a rank-ordered classification of norms and principles consisting of three levels:

1.     The level of fundamental ethical norms (or norms of conduct): responsibility; equality, inter and intra-generational equity in attaining the conditions for the fulfilment of needs and aspirations, whether or not codified as rights and duties in the legal sense.

2.     The level of pragmatic norms: Participation, efficaciousness, efficiency, prudence.

3.     A third level consisting of a lower order of principles, precepts and rules of action which correspond to the various pragmatic norms, viz. principles of integration, subsidiarity, knowledge and information, precaution, responsibility[78], etc.

* * *

SUSTAINABLE DEVELOPMENT AND LAW IN EUROPEAN COUNTRIES

By Michel Prieur

Emeritus Professor of Law at the University of Limoges

Director of CRIDEAU (CNRS-INRA)

Member of the French National Council for Sustainable Development

The concept of sustainable development that emerged from the 1992 Rio Conference reflected a new political strategy to promote economic development.  It was a case of successfully protecting the environment while also allowing development.

The concept of sustainable development has rapidly enjoyed unexpected success, to the extent that it has entered the political, media and commercial vocabulary.  It is also in the process of entering the legal vocabulary.  There are two reasons for this fervour.  The first relates to its nebulous nature, the term being used by people with different interests and motives who feel free to interpret it as they see fit.  The second is that the concept lacks a priori any legal dimension in the sense that it does not imply restrictive obligations but instead consists of voluntary commitments relating more to ethics than to constraints.  This explains why captains of industry are attracted to the concept of sustainable development.

To talk about law with regard to sustainable development appears therefore to be a contradiction, if sustainable development is characterised by the absence of legal obligations.

Sustainable development constitutes a guideline for public policies and rests on four aspects:

1.    Intergenerational equity: according to Principle 3 of the Rio Declaration, development must be carried out in an equitable way between generations and must be cautious with regard to shared natural resources.

2.    Integration: according to Principle 4 of the Rio Declaration, environmental protection must constitute an integral part of development and cannot be considered in isolation.

3.    Interdependence and complementarity as consequences of integration: sustainable development is that which takes into account at the same time economic development, protection of the environment, social equity and cultural values.  These four development pillars must be interdependent and complementary, according to the 1992 Johannesburg Declaration on Sustainable Development.

4.    Governance: sustainable development requires a new means of public and private management which imposes transparency and the participation of all parties.

These guidelines will little by little enter national law with varying degrees of success.  Yet the purpose of sustainable development remains nebulous and full of misunderstandings, since it can be used in two completely different senses.

For some people, sustainable development is used to place a heavy emphasis on the environment, using the virtues of the principle of integration which allows for policies to gradually become greener.  It is, therefore, a question of truly becoming aware of the sharing of responsibilities, which implies concerted action on behalf of all players in the face of a world that poses an increasing threat to the environment.

For others, sustainable development is used to place as little emphasis on the environment as possible.  The objective is primarily development, and the environment remains a luxury.  Sustainable development can therefore be used as a decoy, making it possible to pretend to be acting for the good of the environment, while taking advantage of the lack of legal obligations on sustainable development, in contrast with the legal strictness of obligations on environmental law.  At a stretch, sustainable social and economic development is recommended, omitting the environmental pillar.

Examining the relationship between national law and sustainable development necessarily leads to a comparison between sustainable development and environmental law [79]. The latter already exists with its obligatory rules, practice and jurisprudence. Is sustainable development going to acquire a legal status? In this case, how will it articulate with environmental law? Will the right to sustainable development diminish the range of environmental law or will it replace it? Is sustainable development, which is only the translation of the principle of integration, going to make this principle the motor for the disappearance of environment as a sectoral policy?

It seems that, despite the changes in progress that are discussed below, sustainable development has not yet led to new, specific laws, and there is uncertainty as to whether it should:

- remain a goal outside the framework of the law, helping to direct public policy;

- become a principle of action, whether informal or legally enshrined;

- take on the status of a standard used by courts to settle disputes, replacing the principle of proportionality;

- appear as a simple process that determines modern-day governance and decision-making institutions.

These hypotheses can be grouped under three proposals, following a study of the current situation in some European Union and Council of Europe member states.

I.    Standard-setting activity on the increase, but lacking in consistency

II.   Gradual institutionalisation

III.  A fresh dynamic process of governance

I.  STANDARD-SETTING ACTIVITY ON THE INCREASE, BUT LACKING IN CONSISTENCY

Sustainable development is gradually gaining acceptance in all countries of Europe.  But recognition of the concept is having a wide range of different effects in law.  We shall be taking a look at both the legal basis of sustainable development and its component parts (the results of the applicable texts), the principles which may go with it (particularly that of integration) and its role in the supervisory activity of the courts.

1.  The legal basis of sustainable development and its component parts

Having initially featured only in political discussions, sustainable development is increasingly being directly or indirectly introduced into legal texts, both constitutions and other legislation.  This official legal consecration nevertheless seems to have little real legal scope, as the concept is so vague and so variable.  It is more a symbolic consecration of an objective than a consecration in operational terms.

- Germany: while sustainable development is not explicitly mentioned in Article 20a of the Constitution (1994), it is there indirectly, as a reference is made to the state's responsibility vis-à-vis future generations.  Seven recent, or recently amended, sectoral laws do refer to sustainable development in certain fields: soil, nature, water, renewable energy, waste, land use planning and urban planning.  Only the Regional Planning Act contains a definition of sustainable development, with section 1(2) stating that the aim of spatial planning is "sustainable regional development which will bring the social and economic demands made on an area into line with its ecological functions and result in a stable order which will be well-balanced on a large scale".  Thus sustainable development is not a general objective applicable to all policies, but just a sectoral objective in the sphere of spatial planning.

- Belgium: Sustainable development seems to be well integrated into public policies and has been officially recognised since 1993, in the spirit of, and with express reference to, the Rio conference.  A law of 5 May 1997 sets down the aim of sustainable development, which seems to serve as an instrument for internal coherence among the various component parts of the state.  The law highlights the aim of coordinating policies, being known as the "law on the coordination of federal policy on sustainable development".  It defines sustainable development as "development geared to meet current needs, without jeopardising the meeting of those of future generations, the achievement of which requires a process of change adapting to both current and future needs the use of resources, the allocation of investments, the targeting of technological development and institutional structures".  Unfortunately, there is no reference to the environment.  A 2005 constitutional revision project is intended to bring sustainable development into the Constitution.

- Bulgaria: Here, environmental law and sustainable development are very closely linked.  The 2002 Protection of the Environment Act makes sustainable development one of the principles guiding environmental protection (section 3), referring to it several times (sections 52 and 56).  Another section (section 50) offers a definition which does not refer to the social pillar: "sustainable development is that development which corresponds to present needs without restricting or jeopardising future generations' capacity to satisfy their needs.  Sustainable development must combine two of society's aspirations: achieving economic growth which guarantees a better standard of living and protecting and improving the environment today and tomorrow".

- Denmark: several laws since 1992 have referred to sustainable development, without defining the concept, in the fields of nature protection, spatial planning and protection of the environment.  The 1992 Nature Protection Act was introduced to protect nature and the environment "in order to ensure sustainable social development which respects human beings' living conditions and ensures that fauna and flora are protected".  Here, too, sustainable development is cited only as an objective.  Nature protection is no longer an end in itself, being justified only because it contributes to sustainable development.  Thus the environment is subject to objectives external to it.  It is noteworthy, however, that the economic pillar is not mentioned here.

- Spain: While Spain's Constitution and associated laws do refer to the environment, there is no reference whatsoever to sustainable development.  Nor do the laws on the environment refer to it.  There have nevertheless been recent developments.  Encouraged by Community law, the preambles of several texts set sustainable development as an aim, either directly or indirectly.  One example is Act 16/2002 on the prevention and integrated control of pollution, which refers to the Community’s programmes of action on the environment and sustainable development.  The same applies to Act 11/1997 on packaging and packing waste.  Act 6/2001 on environmental impact assessments quotes Article 6 of the Treaty Establishing the European Community on respect for environmental protection requirements with a view to sustainable development.

But more recent texts, in particular, start to refer to sustainable development as a very general objective, although without ever giving indications which could make up a definition.  Act 41/1997, amending the 1989 act on natural areas and flora and fauna, mentioned in its preamble the need for greater weight to be given to sustainable development.  Great importance now seems to be attached to this concept in the nature protection sphere, with Royal Decree 1833/1999 on the national parks master plan having as one of its objectives the drawing up of sustainable development guidelines.  Similarly, Royal Decree 1627/1999 on public grants to national parks refers to the aim of "promoting sustainable development and the quality of life of the residents of national parks' area of socioeconomic influence".  The rules governing several national parks also specify the aim of promoting sustainable development of the region and its population (Royal Decree 104/1999 on the Sierra Nevada national park and Act 33/1999 on the Cabaneros national park).  The Picos de Europa national park master plan even, exceptionally, covers several aspects conducive to sustainable development, setting as its objective "the promotion of sustainable social, economic and cultural development".  And Act 3/2001 on sea fishing also includes among its objectives the balanced exploitation of fish stocks in order to foster the sustainable development of fishing.

More indirectly, several texts in the economic sphere nevertheless refer to the need for a sustainable speed of growth (Act 2/2001 on the electricity sector, Act 9/2001 on free competition and RD Ley 7/2000 on telecommunications).

- Estonia: Estonia is unusual in that it passed a law on sustainable development in 1995, requiring national development programmes to be drawn up in sectors with the greatest environmental impact, such as energy, transport, agriculture, forestry, tourism, the chemicals and agri-food industries and building.

- France: The term "sustainable development" first appeared in French legislation in 1995, in the environment sector.  That text, amended, is now the first article of the Environmental Code, which states that the "protection, enhancement, restoration, rehabilitation and management [of the various component parts of the environment] are of general interest and contribute to the objective of sustainable development which aims to satisfy the development needs and protect the health of current generations without compromising the ability of future generations to meet their own needs".  Sustainable development is thus clearly an objective, parliament having rejected an amendment which would have made it a principle.  It is environmental policy that is thus to strive for, and seems central to, sustainable development.  The relationship between environment and sustainable development would be different if the lat, turned into an objective in its own right, shaped environmental protection by subjecting it to its requirements. It is noteworthy that the legislator, when defining sustainable development, did not refer to the three pillars, but just to economic development and health from the viewpoint of future generations.

Sustainable development has been more or less automatically included in a huge number of other laws relating to the environment or other subjects.  It appears in the very title of the Outline Act of 25 June 1999 on Spatial Planning and Sustainable Development, and also features in the acts which relate to inland transport (1982), the French railway network (1997), sea fishing (1997), farming (outline act of 1999), New Caledonia (1999), electricity (2000), field sports (2000) and forestry (2001).  The Act of 15 May 2001 on New Economic Regulations even states that a public financial institution, the Caisse des dépôts et consignations, contributes to economic progress in the field of sustainable development.  These texts all refer to sustainable development only as a general or specific objective.  The areas where sustainable development takes on the greatest substance, going beyond general declarations, are those of spatial planning and, in particular, urban planning, with the new local urban plans having planning and sustainable development components.

Sustainable development became a constitutional objective on 1 March 2005, when the Constitution was revised through the adoption of a Charter on the Environment with the same constitutional-law status as the 1789 Declaration of the Rights of Man.  This constitutional Charter uses the term "sustainable development" twice, thereby giving it constitutional status.

The first reference comes in the last of the recitals, which states that "in order to ensure sustainable development, the decisions taken in order to meet present needs must not jeopardise future generations' or other peoples' capacity to meet their own needs".  The objective is thus a general one which determines the place of the environment in constitutional law.  Sustainable development must guide society's decisions, with account being taken of those decisions' effects on future generations and other peoples.  This perspective of the international effects of national decisions has never before been adopted in a constitution.

The second reference is in Article 6 of the Charter, according to which: "Public policies must promote sustainable development.  To this end, they shall reconcile the protection and enhancement of the environment with economic development and social progress".  The verbs used are insistent, and this article may be considered to reflect the principle of integration which requires environmental needs to be reconciled with those of economic development.

- Greece: Here, sustainable development is closely associated with spatial planning policies.  Several articles of Law 2742/1999 on Spatial Planning and Sustainable Development systematically associate the two where planning objectives and instruments are concerned[80].

When the Greek Constitution was revised in 2001, sustainable development was mentioned in Article 24 (1) and the right of every person to the environment was enshrined[81].  In practice, sustainable development no longer appears as a mere objective, although it is not yet a subject of law, but a "principle" which the state must respect under its general obligation to protect the environment.  The term "sustainable development" is used, without any definition being given.  The new Article 24 states that " The protection of the natural and cultural environment constitutes a duty of the State and a right of every person. The State is bound to adopt special preventive or repressive measures for the preservation of the environment in the context of the principle of sustainable development".  This principle of sustainability stems directly from previous environmental case law of the Council of State, which will be examined below.  There are also references to Community law, particularly the Treaty Establishing the European Community (Articles 2 and 6) and the Charter of Fundamental Rights (Article 37)[82], which, as we know, makes sustainable development "a principle".

- Hungary: Article 4 of Act No. LIII of 1996 on Nature Conservation in Hungary sets the objective of ensuring that the conditions for sustainable development exist, defining "sustainable use" as "the use of nature's elements in a manner and at a rate that does not exhaust their regenerative abilities or lead to a decrease in natural resources and biological diversity, thereby maintaining their inherent potential for satisfying the demands and needs of present and future generations".

- Ireland: Sustainable development is enshrined in Irish law, through numerous acts and regulations and in several documents relating to public policy.  The acts referring explicitly to sustainable development are primarily those on the environment: Planning and Development Act of 2000 (amended in 2002), the Environmental Protection Agency Act of 1992, the Protection of the Environment Act of 2003, although there is no reference to sustainable development in the 1996 Waste Management Act.  It was mentioned in other sectors, in application of the principle of integration: the Fisheries (Amendment) Act of 2003, Sustainable Energy Act of 2002, Local Government Act of 2001, Town Renewal Act of 2000 and Dublin Docklands Development Authority Act of 1997.  None of these texts provides a definition of sustainable development.  The question arose in Parliament during the debate in 2000 on the Planning and Development Act, and a deliberate decision not to define it was taken by the Minister of the Environment, so that the concept would remain holistic and be able to develop its full potential, rather than being arbitrarily restricted.  The concept certainly seems more of a general objective and a line of political conduct than a legal principle, although several laws draw on the principle of sustainable development (sections 10 and 34 of the Planning and Development Act).  The purpose of the 1992 Environmental Protection Agency Act is to promote sustainable and ecologically satisfactory development.  The concept also makes an appearance in numerous regulations relating to the environment, such as the Planning and Development Regulations 2001.

A plan to revise the Constitution saw a report written in 1996 which proposed to incorporate in the Constitution an obligation for the state to protect the environment and to comply with sustainable development policies, but this plan was not taken up.

Numerous non-legal instruments refer to sustainable development as an official aim of various public policies.  These include "Sustainable Development: a Strategy for Ireland" (1997) and the Irish report of 2002 for the Johannesburg World Summit, "Making Ireland's Development Sustainable".  The report for the 2003-2005 strategy published by the Ministry for the Environment, Heritage and Local Government in 2003 describes the Ministry's duty as being to promote sustainable development and improve quality of life through the protection of both the environment and the heritage.

- Latvia: The 1997 Protection of the Environment Act, according to section 1, is intended to promote sustainable development in the field of environmental protection.  For the first time, section 3 of the same act states that the principle of sustainable development is one of the four principles of environmental protection.  The principle is described as meaning that the state and the public must set up an economic and social system which enables natural resources to be used sustainably, quality of life to be improved and current needs to be met without jeopardising the meeting of future generations' needs, and while ensuring that biological diversity is preserved indefinitely.

- Lithuania: Article 54 of the 1992 Constitution refers to the state's responsibility for ensuring that natural resources are used sustainably and renewed.

- Luxembourg: The Spatial Planning Act of 21 May 1999 has sustainable development as one of its main objectives, endeavouring to achieve sustainable development of the regions by making good use of their economic, ecological, cultural and social resources.  There is also an Act of 25 June 2004 on the Coordination of the National Sustainable Development Policy.  This contains a definition according to which sustainable development "is focused on meeting the needs of present generations without jeopardising future generations' ability to meet their own needs, and is based on three pillars of equal value, namely economic development, social development and protection of the environment".

The aim of a draft constitutional law under discussion in Luxembourg is to introduce the environment into the Constitution in association with sustainable development: "The state shall guarantee protection of the human and natural environment with a view to achieving the sustainable development of society".  In its opinion on this draft, dated 27 April 1999, the Council of State took the view that a reference in the Constitution to the sustainable development of society would raise protection of the environment above other law, and it considered this highly questionable, both legally and politically.

- The Netherlands: Sustainable development is not a legally recognised concept.  Just one law, the Environmental Management Act, refers to it, and this came into force on 1 April 1994, providing for a National Environmental Policy Plan, subject to four-yearly revision, to be drawn up jointly by the Ministry for Housing, Spatial Planning and the Environment, the Ministry for Transport, Public Works and Water Management, the Ministry for Agriculture, Nature and Food Quality and the State Secretary for Economic Affairs.  This Plan determines the lines to be followed by national environment policy, among the aims of which is development that meets the needs of present generations without jeopardising those of future generations (section 4.3 (2)).

- Poland: Article 5 of the Constitution of 2 April 1997 states that the Republic of Poland shall ensure the protection of the natural environment pursuant to the principles of sustainable development.  Article 74 states that protection of the environment shall be the duty of public authorities.  Several laws which predate the 1997 Constitution had already incorporated sustainable development, with the Physical Management Act of 7 July 1994 making sustainable development part of the basis of the law (section 1 (1)).  The 1997 legislation on building and energy is also geared to sustainable development.  The Environmental Protection Act of 27 April 2001 is one of the few domestic laws to emphasise that economic and social policies must be integrated with environment policy[83].

- Portugal: The idea of sustainable development appears in the Basic Law on the Environment, of 7 April 1987, according to which the aim of environmental policy is to use natural resources, in qualitative and quantitative terms, on the basis of a development then described as self-sustainable (section 2 (2)).  Sustainable development also makes an appearance in the Regulation on Water Resources, dated 2 March 2001, as well as in the Legislative Decree of 25 May 2001 on the protection of forest species.

Similarly, in the spatial planning legislation sphere, the Basic Law of 11 August 1998 sets as the ultimate aim the harmonious and sustainable development of the country, regions and towns.  The principles for implementation of this policy thus rest on solidarity between the generations and a guarantee to future generations that their territory and its different parts will have been properly organised and developed.  Spatial planning in Portugal is based entirely on the principle of sustainable development.  A policy of encouraging the improvement of living conditions and quality of life has, since 1999, been based on the principle of sustainability.

While the Portuguese Constitution has referred to the environment since 1976, the revised text of 1997 refers to sustainable development.  A new article, Article 66 (2), places the state and other public entities under an obligation to promote sustainable development, which the state must do "in order to ensure enjoyment of the right to the environment within an overall framework of sustainable development".  This constitutionalisation of sustainable development is accompanied by a statement of principles clarifying the objective of sustainability.  The principles concerned are solidarity between generations, the inclusion of environmental targets in sectoral policies, the reconciliation of development with environmental protection and quality of life and the coordination of economic policy with social, cultural and educational matters and with ecological balance.

- United Kingdom: The United Kingdom has, since the nineties, systematically developed instruments of public policy placing sustainable development at the heart of public action.  Notwithstanding the lack of any precise definition, sustainable development has been made an objective of government action vis-à-vis numerous authorities and bodies.  The concept was subsequently introduced into legal instruments, but without really being clarified.  There was no systematic introduction, as in France, but a series of individual initiatives which were not really "joined up"[84].

The first reference to sustainability in the legal sphere was in the Natural Heritage (Scotland) Act of 1991.  The Scottish body responsible for conservation (Scottish Natural Heritage) is under an obligation to ensure that any action taken relating to Scotland's natural heritage is undertaken in a manner which is sustainable.  Sustainable development appears again in the Environment Act 1995, which set up the Environment Agency for England and Wales.  This Agency, according to section 4 (1), exists to protect the environment as a whole with a view to achieving the objective of sustainable development.  The Scottish Environment Protection Agency (SEPA), while not under a statutory obligation to strive for sustainable development, does have to obey guidelines contributing to sustainable development insofar as appropriate.  Section 121 (1) of the Government of Wales Act 1998 specifies that the Welsh Assembly  "shall make a scheme setting out how it proposes, in the exercise of its functions, to promote sustainable development", unlike the other regional assemblies, which are not required to produce such a scheme (or action plan).  Of the Regional Development Agencies set up in the same period, only those of England are under a specific obligation to help to achieve the sustainable development of the United Kingdom, and only one of the four nature and landscape conservation agencies is under an obligation to work towards this same objective.  Although proposals for setting a sustainable development objective were made in respect of some of the legislation on the regulation of services, only the rail and water industries have a duty to contribute to sustainable development.

An unusual feature of UK legislation is the reference to sustainable development in international relations.  The International Development Act (IDA) 2002, passed with a view to combating poverty, states that development assistance is provided for the purpose of furthering sustainable development in one or more countries outside the United Kingdom, or improving the welfare of the population of one or more such countries.  Sustainable development is defined, in section 1 (3), as any development that is prudent having regard to the likelihood of its generating lasting benefits for the population concerned.  During a debate in the House of Commons on 22 November 2001, the Secretary of State said that sustainable development should also help to improve the quality of governance, reduce corruption and promote health and education.  The environment seems to have been overlooked…  The Export Control Act 2002, where it relates to weapons and technology, provides for the Secretary of State, if necessary, to give guidance to exporters, especially where sustainable development is concerned (section 9).

- The Slovak Republic, in section 6 of Act 17/1992 on the Environment, defined sustainable development as development which enables both present and future generations to meet their basic needs without reducing biodiversity and while maintaining the natural functions of ecosystems. 

- Slovenia’s 1993 Environmental Protection Act refers in sections 1 (3) and 3 (3) to sustainable development, without giving a real definition, but referring to the objective of achieving balance between development and environmental needs.

- Sweden: The 1993 Planning and Building Act refers explicitly to the objective of long-term sustainable development for present and future generations.  Other sectoral legislation makes specific references to sustainable development.  An Ordinance on the armed forces (2002:1264, amended by 2002:555) provides, in section 7, that the armed forces must, during peacetime, take account of environmental protection, and makes them responsible for a development which is ecologically sustainable.  The Natural Resources Management Act of 1987 may indirectly be viewed as already inspired by sustainable development, for it states that the use made of natural resources such as soil, water and the physical environment must be such that their long-term survival is ensured.

More generally, chapter 1, section 1 of the Environmental Code of January 1999 states that the objective of the Code is to promote sustainable development in order to ensure a healthy environment undamaged for present and future generations.  Sustainable development was for the first time explicitly mentioned in the Constitution in January 2003: the authorities have a duty to promote sustainable development with a view to creating a natural environment which is satisfactory for both present and future generations.  Thus Sweden emphasises the links between sustainable development and future generations, but without directly striving to reconcile the three pillars.

2.  Statements of principles

As we know, environmental law at both national and international level goes hand-in-hand with certain principles of a general nature (prevention, precaution, polluter pays, information and participation).  The emergence of sustainable development does not seem to have affected the place and scope of these principles, which retain their association with environmental law, although they contribute to sustainable development.  We may wonder whether principles specific to sustainable development are emerging, as might be thought in the light of the New Delhi Declaration of principles of international law relating to sustainable development, adopted by the International Law Association on 6 April 2002, and the Declaration on the guiding principles for sustainable development approved at the European Council of 16 and 17 June 2005 in Brussels.  Most of these principles, while associated with sustainable development, had actually been postulated already in relation to the environment.

Nevertheless, one may wonder whether the ideas of solidarity and equity between generations and of the promotion of fundamental rights have not turned into the new principles that sustainable development carries with it.  They are mentioned almost systematically in the national legislation and constitutions which have established the principle of sustainable development.

The most innovative of the principles with a view to sustainable development in the Rio Declaration is that of integrating environmental protection into other policies (Principle 4).  This is explicit in the Maastricht Treaty (Article 6 of the Treaty Establishing the European Community) and in Article 37 of the Charter of Fundamental Rights of the European Union.  It should systematically have accompanied the inclusion of sustainable development in the law, since it is a consequence thereof.  But very few states have legally formalised the principle of integration.  Integration is not taken to be a legal obligation, although it is one under Community law, albeit one that the Community court has not yet dealt with.

While integration is not formally mentioned in France's Environment Code, it has made an indirect appearance in regulations.  Decree No. 93-276 of 3 March 1993 setting up the Interministerial Committee on the Environment, for instance, specifies that this committee "shall adopt programmes of action relating to the integration of the environment into the policies of the state".  Similarly, Decree No. 2002-968 of 9 July 2002 on the duties of the Secretary of State for Sustainable Development says that he "shall ensure the integration of the objectives of sustainable development".  Since the constitutional reform of 2005, Article 6 of the Charter on the Environment, which states that "public policies must promote sustainable development", has enshrined the principle of integration in the law.

In Ireland, where there has been no general proclamation of integration, there are one-off references in certain laws to the need for integration.  The Planning and Development Act of 2000, for example, lays down that development plans must be consistent with sustainable development.

Portugal is the country which has most directly enshrined the principle of integration, providing in Article 66-2-f of its revised Constitution of 1997 that one of the state's responsibilities, acting via appropriate bodies and with the involvement and participation of citizens, is "promoting the integration of environmental objectives into the various policies of a sectoral nature".

3.  Supervision by the courts

In view of the uncertain and varying substance of the concept of sustainable development, it is hardly surprising that the courts have as yet been unable to rule on its legal scope.  The concept guides the authorities' action, rarely being a direct legal obligation, but it is nevertheless gradually making an appearance in case law.

In Spain, while positive law does not give much room to sustainable development, the Supreme Court has nevertheless regarded sustainable development as a guide for the action for businesses, because of the constitutional role of the environment.  In its decision of 30 May 1997 (case 235/93), the Court declares that "the principle of freedom of enterprise must be compatible with sustainable development", probably also encompassing the environment in that term.  In a judgment of 31 March 1998 (case 176/1995), the courts accepted the lawfulness of the decision of the Council of Ministers to include among the sites protected by the Ramsar Convention the saltpans of Ibiza and Formentera, insofar as this decision guaranteed "sustainable, balanced and reasonable development not forgetting future generations".  The Constitutional Court has recognised sustainable development as an operational concept, although it does not appear in the Constitution, by de facto attaching it to the environment.  The two concepts seem inseparable and almost interchangeable in this context.  According to judgment No. 102, of 26 June 1995, sustainable development is defined as entailing an obligation for the authorities to make economic development compatible with quality of life.  In judgment No. 306 of 12 December 2000, the Constitutional Court ruled that protection of the environment and sustainable development were equivalent terms.  In both cases, the aim is to make the reasonable use of resources compatible with their conservation, taking account of future generations.

In France, although there are some 20 court decisions which mention the term sustainable development, most of these simply reproduce the wording of a text referring to it.  There has not to date been a substantive court ruling on the scope of the concept, either as a legal rule or as a mere standard by which action is guided.  The Constitutional Council, making the first application of the constitutional Charter on the Environment, in a decision of 28 April 2005, decided to verify that a law on the international shipping register did include measures likely to promote maritime safety and the protection of the environment, thus reconciling environment, economic development and social progress in accordance with the requirements of Article 6 of the Charter.

Greece is probably the country with the most extensive case law on sustainable development, with the Council of State dealing with cases relating to the setting aside of administrative acts through application of the constitutional provisions on the environment.  The constitutional revision of 2001 which introduced the principle of sustainable development does seem to  stem from the influence of well-established previous case law.  As early as 1993, in fact, the Council of State referred to the principle of sustainable development as the yardstick for measuring the balance between economic development and protection of the environment.  In a case relating to the setting up of a fish farm, the judge described sustainable development as the compromise solution between two rival provisions of the Constitution, one dealing with the environment (Article 24) and the other relating to economic planning and development (Article 106-1).  The aim was to reconcile these two requirements in an effort to prevent damage to the environment, so that development was sustainable.  In a landmark decision of 1994, in a case relating to diversion of the Acheloos river for irrigation purposes, the Council of State ruled that sustainable development was an inevitable consequence of the constitutional duty to protect the environment, stating in its judgment that "the restrictions on the state's development policy which are necessary to prevent damage to the natural environment derive from the same provision (Article 24 of the Constitution), to the extent that the Constitution allows, not all development, but only that development which is sustainable, meaning that which will entail no damage to the environment and is therefore destined to last" (Council of State, 2760/94).

Subsequently, the Council of State also relied on the reference in the Maastricht Treaty to sustainable development, which backed up its interpretation of the Greek Constitution.  In a 1996 judgment relating to the coastline, sustainable development was defined as that development which meets the reasonable needs of the present generation without jeopardising the needs of future generations: "the main essential is the preservation of the country's natural capital, so that this is transmitted to posterity intact, in order that the necessary equality is achieved between generations in respect of the meeting of their needs" (Council of State, 5335/96).  In 1997, the judgment on high-voltage lines on minor islands refers to "the fundamental rule of sustainable development", and states that compliance with this rule is a matter for the court (Council of State, 2805/97).  Sustainable development has moved on from being a general objective for the authorities, according to this innovative case law, and become a "rule", ie a legal standard derived from the Constitution and the Maastricht Treaty and interpreted in the light of the Rio Declaration and Agenda 21.  It was on the basis of this rule that the construction of a marina in a traditional town on a small island was prohibited (Council of State, 637/98).  It may be assumed that the reference to sustainable development in the Constitution can but strengthen this case law.

Portugal's Supreme Administrative Court applied the principle of sustainable development in a case of 24 September 2003 relating to a nature park.

In the UK, the High Court and Court of Appeal have had occasion to consider whether the concept of sustainable development could serve as a basis for judicial review of a public decision in the Chant and Fairlie cases[85].  Deputy High Court Judge Nigel McLeod took the view that the concept of sustainable development was difficult to define in any precise sense and could not serve as a basis for interpretation.  In the Court of Appeal, the definition of sustainable development cited was that which appeared in a Planning Policy Guidance Note, and it was the same as that given in the Brundtland report.  The argument was nevertheless rejected, sustainable development not being truly equivalent to a legal obligation, but merely to an aim of political strategy.

II.  GRADUAL INSTITUTIONALISATION

Clearly, the states which have not made sustainable development a subject of law are disinclined to set up institutions specialising in that field.  And links do exist between situations where rules and regulations are in force and the development of institutions.  As environmental policies cut across other sectors, it should be no trouble to create instruments of administrative coordination which, by definition, will be common to several authorities, thereby contributing to the implementation of the integration principle, and hence to sustainable development as well.  The view may even be taken that sustainable development by its very nature, even more than the environment - which may if necessary be dealt with in isolation -needs institutions which closely coordinate the various policies concerned.  It nevertheless seems that few countries are aware of the need for institutional support for sustainable development policies, probably putting their faith in traditional coordination instruments.  Thus there are relatively few institutions designated to deal with sustainable development as such.  This does not mean that existing institutions such as Environment Ministries take no interest in the subject.  Many states already have an Economic and Social Council.  Some are tempted to place representatives of the environment on this so that they have an institution to deal with sustainable development.  The examination below will span only those institutions whose name or powers extend to sustainable development, whether at national, regional or local level.

1.  National institutions

The Chancellery acts as sustainable development coordinator in Germany.  But the task is mainly done by a working group on sustainability set up within the government and by the national Council for Sustainable Development set up in 2001 to draw up a national sustainable development strategy.  A special committee on sustainable development was set up within the federal parliament in 2004, a fairly unusual step for a parliament.

Since the Belgian law of 5 May 1997 on the coordination of federal policy on sustainable development was adopted, Belgium has had a Federal Council for Sustainable Development[86], an advisory body which also consults economic players and society in general, and an interdepartmental commission for sustainable development[87] comprising members of the federal government and one member of each regional and community government, under the responsibility of the Minister responsible for the environment, now bearing the title State Secretary for Sustainable Development, who was appointed in 2004.  The Federal Council for Sustainable Development advises the government, particularly on Belgium's compliance with its international commitments.

While Spain seems reluctant to refer to sustainable development in its legislation, several of its institutions are specifically responsible for promoting such development.  These include the National Statistics Institute (RD 508/2001), the Consultative Committee on the Environment (RD 1799/2002), the National Forestry Council (RD 203/2000), and the Spanish Committee for the International Year of Mountains (RD 292/2002).  Within the Ministry for the Environment, a Secretary General for the Environment is responsible for educating and informing the public about sustainable development (RD 1415/200).  The preparation of sustainable development programmes and strategies was added to the responsibilities of the Minister for the Environment in 2002 (RD 2560/2002).

Estonia's National Committee for Sustainable Development was set up by decree in 1996.  This comprises 19 representatives of ministries and civil society.  It is chaired by the Prime Minister, and the Ministers for the Environment and for Economic Affairs and Communications are vice-chairs.  Its responsibilities include advising the government, suggesting legislation on sustainable development and monitoring application of the national strategy.

The Finnish National Commission for Sustainable Development, chaired by the Prime Minister, was set up as long ago as 1993.  This is both an interministerial body, comprising five ministers, and open to non-government members (eight NGOs are among the 44 members).  It offers a forum for dialogue between the public and private sectors, but produces neither recommendations nor opinions.

Sustainable development has become so invasive in France that some people feel that the environment has been forgotten.  Symbolically, but significantly, the Environment Ministry was renamed Ministry for Ecology and Sustainable Development in 2002, with the appointment of a State Secretary for Sustainable Development.  In April 2004, however, the State Secretary’s office was abolished, and an Interministerial Delegate for Sustainable Development was subsequently appointed in pursuance of a decree of 24 June 2004.  The Interministerial Delegate, who reports to the Prime Minister, leads and coordinates government departments' and national public establishments' sustainable development activities, and has a secretariat provided by the Ministry responsible for sustainable development.  Official responsibility for sustainable development is thus borne by the Ministry also responsible for the environment, assisted by, or sometimes acting through, a host of interministerial bodies answerable to the Prime Minister.  Following the Rio Conference, a Council for the Future Generations was briefly set up, between 1993 and 1995, the year when it was disbanded after Commander Cousteau resigned the chairmanship in protest against the resumption of nuclear testing in the Pacific.  France's Commission for Sustainable Development, a 20-member independent advisory body set up in 1993, was abolished on 28 October 2003, having produced a number of interesting reports between 1995 and 2002.  It had issued opinions in 2000 about the precautionary principle, GMOs and the patenting of living things.  There are currently 3 major official national bodies with "sustainable development" in their titles and among their responsibilities, reporting to the Prime Minister:

- the National Council for Sustainable Development, with 90 members, representing civil society and elected local representatives (decree of 13 January 2003);

- the Interministerial Committee for Sustainable Development, responsible for adopting, monitoring and updating the national sustainable development strategy.  All members of the government are on the committee, as are a representative of the President of France and the Interministerial Delegate for Sustainable Development (decree of 21 February 2003);

- the Standing Committee of Senior Officials responsible for Sustainable Development comprises one senior official appointed by each Minister to prepare his or her department's contribution to the national strategy and to monitor application thereof.  It is chaired by the Interministerial Delegate for Sustainable Development and meets every two months.  It has set up working groups on authorities' eco-responsibility, legal monitoring and action at local and regional levels;

- other advisory or scientific institutions deserve mention, among them in the spatial planning field the National Council for Local and Regional Planning and Sustainable Development (set up by a 1999 law), the Institute for Sustainable Development and International Relations (IDDRI) (set up in 2002 within the Prime Minister's office as a think tank and research centre geared to public action), and the Scientific Institute for Sustainable Development (set up as a groupement d’intérêt scientifique in 2002 to monitor sustainable development policy and to provide technical support to the National Council for Sustainable Development).

No decision-taking body in Ireland has "sustainable development" in its title, but an advisory body has existed since 1999, known as the National Sustainable Development Partnership (Comhar).  This has 25 members representing civil society and academia, and bears responsibility for the national sustainable development programme, evaluation thereof and achieving a national consensus on the subject.  In July 2002 it published its principles for sustainable development, and its 2003 annual report is also of interest[88].

Lithuania set up a National Commission for Sustainable Development in 2000, chaired by the Prime Minister and with the Ministers for the Environment and the Economy as vice-chairs.  This, however, seems to have been inactive since the national strategy was approved in 2003[89].

Luxembourg's Act of 25 June 2004 centres all environmental action on sustainable development.  The Minister for the Environment was made responsible by a decree of 11 August 1999 for coordinating the different ministries' work on sustainable development.  The Act of 25 June 2004 sets up a Higher Council for Sustainable Development and an Interdepartmental Commission for Sustainable Development.  A national sustainable development plan is to be approved every four years and a national implementation report published every two years.

Article 8 of Malta's Environment Protection Act of 2001 provides for a National Commission for Sustainable Development to be set up, chaired by the Minister for Rural Affairs and the Environment and comprising 40 members (government officials, scientists and NGOs).  This was given responsibility for drawing up the national strategy, which was approved in 2005[90].

In the Netherlands, as elsewhere, sustainable development is dealt with by the various ministries concerned.  The only specific institution is a coordinating body, the Interdepartmental Commission for Sustainable Development, which is responsible for harmonising national policy.  A National Institute for Sustainable Development had been set up in 1999, but was disbanded in 2004.

As early as 1994, Poland set up its Interministerial Commission for Sustainable Development, which was superseded in 1998 by a Commission on Regional Policy and Sustainable Development, chaired by the Minister for the Economy, but this was in its turn disbanded in 2001.  The Commission for Sustainable Development, chaired by the Minister for the Environment, was set up in 2002, comprising representatives of ministries, scientists and representatives of civil society.  This is particularly responsible for monitoring implementation of the national strategy.

Portugal set up its National Council for the Environment and Sustainable Development in 1997 (under a legislative decree of 20 August 1997), which is very much open to economic players, civil society and elected local representatives.  The research sector and consumers have also been represented since 2004.

The creation of various institutions in the United Kingdom has been indicative of the political significance of sustainable development.  A British Government Panel on Sustainable Development was set up first within the Environment Department, and a Round Table on Sustainable Development (RTSD) was set up by the government in 1995 in support of its new policy on sustainable development.  This is an advisory body tasked with fuelling the debate and arriving at a consensus through all sectors of society, as well as producing sectoral reports (on energy, for instance, in 1998).  The two bodies were subsumed in 1999 into the Sustainable Development Commission (SDC), more of an advisory body than one responsible for monitoring implementation.  It bears responsibility for identifying unsustainable tendencies, suggesting remedial action, fostering awareness and encouraging good practice[91].  Previously a matter for the Department for Environment, Transport and the Regions, environment issues were transferred to the Department for Environment, Food and Rural Affairs in 2001.  This continues to lead the way where sustainable development is concerned[92].

At the same time, a parliamentary Environmental Audit Committee (EAC) was set up to assess the various ministries' policies and action with the to protect the environment and foster sustainable development.  This committee is now the key body in terms of sustainable development, bringing pressure to bear on the government to improve its sustainability performance.

National sustainable development councils are certain to become widespread, with the Slovak Republic setting one up in 1999[93], Malta in 2002, and Poland and the Czech Republic in 2003, with Slovenia[94] following suit in 2004.

Advisory bodies on sustainable development usually lack any real influence in the legal sphere.  Hungary's Commission on Sustainable Development is highly noteworthy in this respect, having a statutory right to give an opinion on draft legislation, and even to veto texts.  Starting this year, its opinions are being published in the Official Gazette.  The Belgian government has a duty under (Article 11 of) the federal law of 1997 to give grounds for its decisions where these conflict with the opinion issued by the Federal Council for Sustainable Development.  The situation is similar in the Netherlands.

2.  The local and regional levels

It does seem that sustainable development is essentially a matter for national policies and authorities.  Under the influence of Agenda 21, however, local authorities do now have a significant role to play in environment issues, and therefore in sustainable development.  The transformation of local Agenda 21 plans into local sustainable development programmes or strategies is a significant shift.  The Flemish-speaking region of Belgium drew up its sustainable development strategy in 2004.

Sustainable development has been more fully incorporated into the law of Spain's Autonomous Regions than national law.  All regional environmental legislation since the mid-nineties has explicitly been geared to sustainable development, referring to it in the preamble, setting it as an objective or laying it down as a principle.

Municipal authorities in France, which are responsible for urban planning, have a statutory duty to ensure that their local development plans strike a balance between controlled urban development and the protection of natural areas and landscapes, "while respecting the objectives of sustainable development" (Article L. 121-1 of the Urban Planning Code).  Thus local development plans have to be accompanied by a sustainable planning and development project.  Regional planning and development blueprints have to contain a regional charter "defining the fundamental 10-year aims of sustainable development in the region concerned".  Since the 1999 Outline Act on Spatial Planning and Sustainable Development, the concept of pays (local area) has been developed, encompassing the area’s municipalities with a common cultural and geographical identity.  Each of these new areas has a duty to draw up a charter "expressing its common project for sustainable development", drawing on the recommendations in the local Agenda 21 plans.

Ireland's 1997 sustainable development strategy required every local authority to draw up its own local Agenda 21.  Every development plan drawn up by planning authorities has to include a sustainable development strategy for the area covered, with content and objectives as specified in the Act (Planning and Development Act 2000, section 10.2).  The same applies to local and regional plans (sections 18-20 and 21-27 of the 2000 Act).

The Slovak Republic has drawn up a model regional Agenda 21 (for the Hron river basin) which accords with the national strategy, also setting up a regional council for sustainable development[95].

III. A FRESH DYNAMIC PROCESS OF GOVERNANCE

It does seem that one of the benefits of the inclusion of sustainable development in national law and in public policies is that the public authorities and private players concerned have been drawn towards a new kind of governance, paying more heed to the longer term and to public participation.  While this does have variable geometry, and take legal forms which are very far from perfect, sustainable development does appear to galvanise the persons concerned, making them more aware of their environment in a less abrupt and dramatic fashion than occurs when the sole aim is strictly nature conservation.  Initiatives are thus taken by the various players and impetus is given to the sustainable development movement at both international and Community level, and the instruments of sustainable development are brought into use.

1.  Getting various players involved

It is generally the case that central government, NGOs and businesses co-operate more readily on sustainable development than on the environment as such.  Thus, to different degrees, depending on the state concerned, information and education campaigns are run, numerous meetings and colloquies are held, research programmes are undertaken and publications proliferate.  The law has no part to play here, for these are informal or communication activities (roadside and television campaigns were run by Spain's Environment Ministry, for instance, in 2002 and 2003).

It nevertheless has to be said that an attempt has been made in several countries to provide a legal basis for such efforts to gain public support for sustainable development, with the law stating the need for special education and training activities relating to the environment.  National action in this sphere should make a contribution to the UN Decade of Education for Sustainable Development (2005-2014), for which UNESCO is responsible.  Article 8 of the French Charter on the Environment deals with education and training, while Article 9 covers research and innovation.

Article 66.2 of the Portuguese Constitution deals with environmental education.  It contains fine-sounding words, but these do reflect a political will to get all players involved in support of public action.  A great deal of new teaching about sustainable development has ensued.  Engineers are made aware of sustainable development issues during their training[96].  This often involves a new way of presenting environmental education.  Law is also concerned, with sustainable development law training covering the social and economic aspects of development (University of Limoges, France).

The same idea of public involvement is reflected in those constitutions or laws which impose a "duty" on all to help to protect the environment and contribute to sustainable development.  The environment has to be protected, no longer just by the state, but also by all public and private players (Article 20 of the Finnish Constitution and Article 2 of France's Charter on the Environment).

The private sector is also heavily involved, and the new enthusiasm for sustainable development in certain industrial quarters is not unambiguous.  A new business ethic and marketing considerations play a part, and also provide a basis for firms' voluntary commitments.  Firms' own codes and charters now make sustainable development one of their main objectives[97].  A public-sector charter for sustainable development has been adopted in France, and was signed on 19 October 1999 by Paris Airport, the Caisse des dépôts et consignations bank, Electricité de France, Gaz de France, the national forestry office, national rail company, Paris public transport service and the national waterways system.  This did not, however, prevent industry from objecting to the precautionary principle in the French Charter on the Environment, but the leading French firms have espoused the cause of sustainable development in their advertising.  It is clear that consultants and communicators have discerned a new market in sustainable development.  The Carrefour retailing group focused on sustainable development during its 2004 advertising campaign.  In 1997, the Irish Business and Employers Confederation published a report on an environment policy which fosters economic growth, and this promoted the benefits of sustainable development[98].

Environment NGOs' strategy vis-à-vis sustainable development seems to vary, with some countries (such as Spain and Ireland) having no associations with the term "sustainable development" in their title, but others having flourishing sustainable development associations.  In France, for instance, the association known as 4D (Dossiers et Débats pour le Développement Durable) was set up in 1993 and organises discussions and forums; Comité 21 (the French committee for the environment and sustainable development), comprising industrialists, associations and local authorities, offers leadership, training and expertise[99].  Germany has, since 1996, had a network of experts on sustainable development and protection of the environment, linked to the professional impact assessments sector[100].

2.  Instruments for achieving sustainable development

In practice, these are all the legal and administrative instruments that exist, since integration and comprehensiveness are the aim where sustainable development is concerned.  Thus the rules of environmental law are legal instruments for achieving the teleological objective of sustainable development.  We shall look here only at those which seem most specific.  Some of them are legal, others technical or political.

A. Environmental impact assessments

Environmental impact assessments as a legal procedure proper to environmental law seem the best legal instrument for preventive action to achieve sustainable development.  They were originally restricted to effects on the environment in the strict sense, but general developments in law now make them indirectly an instrument for studying projects' socioeconomic and cultural effects as well.  This extension in practice corresponds to the four pillars of sustainable development.  National law hardly ever explicitly refers to sustainable development in the context of impact assessments.  This does not mean that sustainable development elements are ignored, but they nevertheless deserve more attention than they get.  Authorities' final decisions, of course, depend on an appraisal of all the project's effects, taking account of the cost-benefit analysis, the expression of a balance between development and protection of the environment.

There is no legal provision for an examination of a project's effects on the balance between the four pillars of sustainable development.  Such an overall review is a matter for the political authorities and the government's discretion.  Bulgarian law on impact assessments offers one of the few examples of an explicit requirement for such assessments to take account of the effects on the principle of sustainable development (Article 81 (2) of the Environmental Protection Act of 2002).  Irish law provides for the authority determining a project to take account not only of the findings of the impact assessment, but also of the project's effects on the sustainable development of the region (section 175-6 of the Planning and Development Act 2000).  France's June 2003 sustainable development strategy suggests encouraging the conducting of sustainability impact assessments during commercial negotiations, ensuring that the findings are taken into account by the negotiators[101].  Furthermore, the draft protocol on sustainable development presented by the European Commissioner for the Environment in May 2003 with a view to being appended to the Constitution for Europe specifically provided in paragraph 5 for a sustainability impact assessment covering the economic, social and environmental consequences of draft legislative acts of the Union.

B. National sustainable development strategies

Virtually all states have, at some stage, drawn up a national sustainable development strategy, as they were invited to do by Agenda 21 and the Johannesburg Summit.  This is therefore the favoured instrument for achieving sustainable development.  But these strategies have rarely been integrated into national law as it relates to planning.  These strategies are merely non-binding action programmes, expressions of political will, not reflecting a legal commitment.  This gives cause for regret.  The deliberately vague status of such strategies affects the legitimacy of sustainable development, which is as a result regarded as just verbiage, and not law.  Many national strategies are destined more for national authorities than for society at large, and this is not in the general spirit of sustainable development (examples are France's strategy and Belgium's second national strategy, dating from 2004).

Germany's first national sustainable development strategy was adopted in 2002 for the period up to 2006.  It was discussed in parliament, but no vote was taken, for lack of any statutory basis.

Belgium's first national strategy (2000-2004) is one of the few to draw directly on the European strategy[102].

Estonia's national sustainable development strategy was drawn up from 2001 onwards, receiving government approval in 2005 and that of parliament in 2006.  It is a long-term strategy (valid until 2030) and takes account of the national environment strategy, which, following approval back in 1997, led to a series of action plans each valid for three years.  The four main objectives of the country's sustainable development strategy are the viability of Estonian culture, an increase in the well-being of society, social cohesion and the maintenance of the ecological balance.

France's first national sustainable development strategy was published by the government without much fuss in February 1997.  A second one was drawn up during a participatory process involving a government seminar at which each Minister was asked to make a contribution to sustainable development in his or her sector (November 2002).  Then, in June 2003, this strategy was adopted by the Interministerial Committee for Sustainable Development, but without having been presented to parliament and without being given official legal form[103].  The Interministerial Committee, in pursuance of Article 3 of the decree of 21 February 2003, effectively has power to adopt a national strategy and to draw up an annual report on its implementation.  It is simply an administrative document, comparable with an action programme, drawn up for a five-year period.  It was nevertheless presented and discussed in the National Council for Sustainable Development set up under the decree of 13 January 2003 which also gave rise to the strategy, Article 2 stating that the National Council "shall be associated with the drafting, monitoring and evaluation of the national sustainable development strategy".  The only official indication about the content of the strategy is the statement in the decree of 21 February 2003 that the national strategy must be both consistent with France's position and commitments, at European level, and agreed with the Interministerial Committee for International Co-operation and Development, at international level.  The Prime Minister, in the introduction to the national strategy, describes it as a framework for action in the years ahead, offering guidance to the government, as well as an illustration of the new governance involving all sections of society.  The strategy is also described as containing action programmes with a view to implementing the Charter on the Environment.  An external assessment of the French strategy was made in 2005 by a group of foreign experts.

Ireland has had a national strategy since 1997[104].  Luxembourg's 2004 law seems more ambitious, legally formalising a four-year national plan for sustainable development, approved by the government after a participatory process and a reasoned opinion from parliament.  Although provision is made for it in a legal text, the plan is presented as a political document, containing recommendations and objectives.  The plan includes both objectives and proposed activities and instruments for achieving these.  Belgium's law of 5 May 1997 provides for a federal sustainable development plan to be drawn up every four years.  The first covers the period 2000 to 2004.  A preliminary draft plan for 2004-2008 is under consideration.  This is being drawn up by the Federal Planning Bureau, which produces a federal report on sustainable development every two years, assessing Belgian policy in the light of international developments.  The plan, which uses the same classifications as Action 21, lays down the measures to be taken at federal level to achieve sustainable development objectives.  It sets down measures, means and timing, and is also required to anticipate the financial, economic, social and ecological effects of the sustainable development policy pursued.  Latvia's national strategy was approved by the government in 2002.  Every three years, the Minister for the Environment has to submit a strategy for consideration by the national Council for Sustainable Development set up in 2001.  In Portugal, it is the Environment Institute which is responsible for drawing up the national sustainable development strategy and for helping to foster coordination, inter-institutional co-operation and public participation with a view to promoting sustainable development (Article 12.A.2.c of Legislative Decree No. 8/2002 of 9 January).

Poland's national strategy, known as "Poland 2025", was adopted on 26 July 2000 by the Council of Ministers, although there is no statutory provision for it.  The strategy stems from a resolution of parliament dating from 1999 and provides for legislative reform in order to achieve sustainable development[105].

Portugal drew up its national strategy in 2002, and this was approved by the government and parliament in 2004.

The United Kingdom was one of the first states to draw up a national sustainable development strategy, which it did under a Conservative government (Sustainable Development, the UK Strategy, Cm 1200, 1994).  The main aim was to "green" ministries, creating a specialised environment contact point in every ministerial department.  Annual monitoring of the strategy was organised.  An Environmental Audit Committee was set up by the House of Commons.  The Labour government put forward a revised strategy in 1999, placing more emphasis on the social pillar (A better quality of life: strategy for sustainable development for the United Kingdom, Cm 4345, 1999).  The aim was to place sustainable development at the heart of the decision-making process, using mainly voluntary measures.  It is no longer regarded as enough just to "green" the government, for it needs to take sustainable development into account at every turn.  An annual report is still produced on the implementation of the national strategy[106].  Work began on Slovakia's national sustainable development strategy in 1999, when all the players were engaged in a wide-ranging process of participation, with the strategy being adopted by the government in 2001[107].

Sweden also has a national strategy[108], which the government published in 2001 and submitted to Parliament in 2002, and has been undergoing revision since 2004.  The Czech Republic's national strategy[109] was approved by the government on 8 December 2004, driven and coordinated by the Government Council for Sustainable Development set up under a government resolution of 13 July 2003.

Some groups of countries have common sustainable development strategies coordinated with their national policies, examples being the states of the Baltic[110], the Nordic countries[111] and the members of the Arctic Council[112].

C. Sustainable development indicators

Several sets of sustainable development indicators have been developed by international organisations and national authorities so as to assess the level of sustainable development achieved and to improve the monitoring of national strategies.  Under Agenda 21 (Rio), there must be a system of efficient indicators for assessing the progress made in sustainable development.  National indicators are drawn up on the basis of the previous work of the UN (134 indicators initially identified, and methodology sheets published, in 1996)[113] and the OECD, as well as the list of structural indicators for monitoring the European strategy adopted at the Lisbon Summit in March 2000[114].  The indicators for use in monitoring the environment-related part of the European strategy for sustainable development were adopted at the European Council in Gothenburg in 2001[115].  These indicators need to be agreed and to represent the three dimensions of sustainable development (social, economic and environmental).  They are statistical or social instruments enabling the pillars of sustainable development to be monitored at one and the same time, so they relate to ecology, the economy and the social sciences.  The law, especially where it relates to the environment, is a useful indicator of commitment, voluntary or compulsory, to strive for sustainable development, but it is rarely taken into account.

The United Kingdom came up with 15 sustainability indicators in 1999 for monitoring how effectively sustainable development is taken into account[116].  This method may of course be regarded as imperfect[117].  A lot of work has been done in France at both national and regional levels, without there being any official indicators[118].  France’s 2003 sustainable development strategy, however, stated that there would be two series of indicators, one for monitoring the national strategy, with quantitative and qualitative elements, and the other relating to sustainable development in general, reflecting the state of the environment, the economy, public health, quality of life and social cohesion, drawn up so as to be consistent with implementation of the new Institutional Act on the Budget Act.  Luxembourg's law of 25 June 2004 makes explicit provision for the national report on sustainable development to include an assessment of the policy pursued "on the basis of sustainable development indicators" (section 17).

D.  Local Agenda 21 plans

Following on from Rio and Agenda 21 again, the idea of adopting a local Agenda 21 has been taken up very widely, usually on an informal basis.  Authorities are asked to assess the state of their environment and, in consultation with the public, consider new ways of meeting sustainable development objectives.  Thus action programmes and a dynamic process of shared local governance ensue which help to reconcile development and environment.  Rarely is the law involved in these processes, although the "local area" concept appearing in France’s 1999 Outline Act on Spatial Planning and Sustainable Development has provided the basis for localised trials of Agenda 21.

2,500 German municipalities, 17% of the total, have drawn up their own Agenda 21 plan.  Not only cities have done so, for towns with a population of under 50,000 have joined in since 1998.  Many of them are also members of international networks (Climate Alliance, Sustainable Communities Network, International Council for Local Environmental Initiatives), giving them additional impetus.  A German advisory body may also be consulted via Germany's local Agenda 21 network.  Agenda 21 has been very successful at local level in Finland, with 80% of municipalities adopting one.  The Association of Finnish Local and Regional Authorities adopted a sustainable development strategy in 1997, prompting municipalities to do the same.  Finland and Denmark have set up a network of local players from several Nordic countries known as BLA21F (Baltic Local Agenda 21 Forum)[119].  In France, Comité 21, the French committee for sustainable development, helps authorities to draw up their local sustainable development strategies[120].  Until recently, it was mainly municipalities, intermunicipal structures and a few departments which had, since 1993, drawn up what were known as local charters on the environment, but now, and particularly since the regional elections of 2004, regions are also giving thought to sustainable development.  An initial, government-funded, call for projects resulted in assistance being given to 16 local authorities with the drafting of their own Agenda 21 plans.  A third such call in 2003 led to 41 of the 125 applicants being selected.  The 2003 national strategy provides for an Agenda 21 to be drawn up in a total of 500 localities by 2008. In Ireland, the Ministry for the Environment draw up a guide for local authorities in 1995 called "Local Authorities and Sustainable Development: Guidelines on Local Agenda 21", to which additions were made in 2001[121].  Agenda 21 plays an important role in those Irish local authorities which adopt one[122].  Agenda 21 has been extremely successful at local level in Sweden, in both the public and private sectors.  Some large stores, factories and schools have drawn up their own Agenda 21 plans with a view to sustainable development.  Similar guidance documents have also been drawn up by local and regional authorities (131 in number)[123].  In the Netherlands, the city of Rotterdam ran a sustainable development campaign in 2002 which served as a daily tool for improving quality of life, and launched a unique "sustainable incentive card scheme" (Nuspaarpas)[124] for the users of various city services.  Only 12% of municipalities in Portugal have a local Agenda 21 plan.

In the United Kingdom, all central government policy relating to local authorities has been based since 1998 on the idea that local government should focus on the objective of sustainable development, in conjunction with a new form of governance involving greater public participation[125].  The Local Government Act 2000 reflects some of these targets.  The aim of the reforms was to improve quality of life, regarded as the prime objective of sustainable development in the national strategy.  According to the Act (section 4 (1)), every local authority must prepare a community strategy for promoting or improving the economic, social and environmental well-being of their area and contributing to the achievement of sustainable development in the United Kingdom.  These community strategies may be regarded as a form of local Agenda 21 plans required by the law. The Swedish government has been very actively helping local authorities to draw up their own local Agenda 21, with 70% of municipalities now having such a plan, and half of these also having a local development strategy.  All should have adopted such a strategy by 2005, according to the 2004 national strategy.  The Czech Republic has systematically introduced local Agenda 21 plans in 65 regions and cities, with some help from the United Kingdom[126].

CONCLUSION

Sustainable development might have been expected to be linked, in national law, to human rights.  With the exception of Ireland and France, however, very few countries make such a direct link.  Ireland's sustainable development strategy of 2002 refers to the rights of ordinary people, while France's 2003 sustainable development strategy has the general aim of improving democracy and human rights in the context of a new form of governance.  And France’s 2005 Charter on the Environment links sustainable development to a recognition of the human right to a healthy environment.  These links are very indirect, however, contrasting with the international-law situation as regards non-binding declarations, where sustainable development seems much more closely linked to the effort to strengthen human rights.  Thanks to its comprehensive and cross-sectoral aspects, sustainable development is presented as a new instrument for improving human rights, as it helps to enable individuals' basic needs to be better met and to reduce poverty.  As Rio Principle 1 states, "Human beings are at the centre of concerns for sustainable development".  The link between sustainable development and human rights is also expressed in a 1997 resolution of the Institute of International Law which states that the "effective realisation of the right to live in a healthy environment should be integrated into the objectives of sustainable development".  Even more specifically, the UN Commission on Human Rights adopted a resolution (Resolution 2003/71) on 25 April 2003 on "Human rights and the environment as part of sustainable development" stating that "respect for human rights and fundamental freedoms [is] essential for achieving sustainable development".  The protection of human rights helps to foster sustainable development.  It should therefore hold a clear place in all strategies and commitments connected with the promotion of sustainable development, but this is not currently the case.  If we take a coherent view of sustainable development, we should conclude that such development must help to fulfil human rights, and not only the right to a healthy environment.

*  *  *

Finally, a few proposals are set out below:

1.  "Sustainable development" must not supersede "the environment".  It is not a new way of looking at protection of the environment.  It involves extending and broadening environmental considerations to all public policies.

2.  Sustainable development must not serve as a pretext for easing environmental constraints or legitimising the elimination or absence of binding legal obligations.

3.  The nebulous and complex nature of the concept of sustainable development must not be exploited as a cheap way of legitimising a policy that gives the false impression that collective interests are being taken into account where environmental protection is concerned.

4.  In order to avoid confining sustainable development in vague, abstract and incantatory mode, it should be speedily incorporated into the legal system as a subject of both rules and institutions.

5.  The best way of effectively achieving the objective of sustainable development is to make it a legal requirement through the adoption of appropriate instruments.

6.  Sustainable development policy must back up environment policies and help to strengthen environmental law.

7.  Sustainable development is an objective for public authorities and private players.  It is also a process contributing to better collective governance and geared to bringing about constant and lasting improvements in living conditions and the environment.

8.  The principles below must be applied to sustainable development:

-   account must be taken of future generations and equity between generations,

-   the environment must be integrated into every sector of activity,

-   solidarity between natural environments and peoples must be the aim, together with the combating of poverty,

-   the four pillars (economic, social, environmental and cultural) must be interdependent and complement one another, and a balance between all four should be sought,

-   respect for human rights, including the right to a healthy environment, must be assured.

9.  Sustainable development should serve as a guide for development aid policies and for international economic and commercial relations.

10.  The principle of integration of the environment into other sectors should be laid down in law.

11.  The law must be able to give sustainable development tangible and material form.  Sustainable development may thus give rise to law, but without becoming a law in its own right.  Its concepts, principles and procedures must become part of general law, and environmental law in particular.  Environmental law, a body of law which already exists, must be the favoured route for bringing sustainable development into the law.

12.  The Ministry for the Environment should steer and hold responsibility for national sustainable development policy, with the help of an interministerial coordinating body and an advisory committee on sustainable development open to NGOs and civil society.

13.  Education and training about the environment and sustainable development should be a formal legal requirement, so as better to achieve the objectives of the UN Decade of Education for Sustainable Development.

14.  Environmental impact assessments should be systematically extended to cover sustainability in respect of not only works and structures, but also legislation, plans and programmes.

15.  National sustainable development strategies should be enshrined in law and become binding.

16.  Environmental law should be systematically taken into account as a sustainable development indicator.

17.  Local Agenda 21 plans should be given official status and formally included in the legal instruments of local and regional planning.

18.  Courts should increasingly take account of sustainable development so as to give it its full legal effect, once it has been included in the country's constitution or enshrined in law as an objective.

19.  Sustainable development brings greater responsibility for everyone.  Once it has become a political objective made binding by the law, the monitoring of its implementation must be supported by legal machinery, not only for evaluation purposes, but also for repair, restoration and rehabilitation where the environment has been damaged or the other protected rights infringed.

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