Research Paper

on
LEGAL STRUCTURES AND
NATIONAL & INTERNATIONAL
FRAMEWORK FOR
SUSTAINABLE DEVELOPMENT

Authors Name : Ayush Gehlot

INTRODUCTION:
The concept of 'Sustainable Development' is not a new concept. The doctrine had come to be
known as early as in 1972 in the Stockholm declaration. It had been stated in the declaration
that: " Man has the fundamental right to freedom, equality and adequate conditions of life, in
an environment of a quality that permits a life of dignity and well being and he bears a
solemn responsibility to protect and improve the environment for present and future
generation "
But the concept was given a definite shape in a report by world commission on environment,
which was known as ' our common future'. The commission, which was chaired by the then
Norway Prime Minister, Ms. G.H. Brundtland defined 'Sustainable Development' as: "
Development that meets the needs of the present without compromising the ability of the
future generations to meet their own needs".The report was popularly known as 'Brundtland
report' the concept had been further discussed under agenda 21 of UN conference on
environment and development held in June 1992 at Rio de Janeiro, Brazil.
Sustainable development is development which meets the needs of the present without
compromising the ability of future generations to meet their own needs. It is aimed at
promoting wellbeing of citizens now and in the future. It requires creating a sustainable and
resource efficient economy founded on a fair and just society, respecting the three core pillars
of sustainability: the environmental, the economic, and the social.
The original concept of sustainable development was elaborated upon through a series of
groundbreaking documents and legal instruments agreed at the 1992 Earth Summit held in
Brazil (also known as the United Nations Conference on the Environment and Development
or UNCED), which was a major success in raising public awareness on the need to integrate
environment and development. In the preparatory process for the Rio Summit in 1992, there
were a number of proposals for institutional reform to address the challenges of sustainable
development. Also, UNCED saw the adoption of a number of crucial agreements and those
agreements were signed at the Earth Summit, which are as follows:

The Rio Declaration on Environment and Development;

Agenda 21;

The Convention on Biological Diversity (CBD);

The United Nations Framework Convention on Climate Change (UNFCCC); and

LEAGL STRUCTURES & INTERNATIONAL

FRAMEWORK

A. International Treaties and Principles of Sustainable Development:

There are a number of examples of international treaties that include principles of sustainable
development. These include:

World Heritage Convention (1972) which refers to natural and cultural heritage
being preserved for the benefit of mankind.

Ramsar Convention (1973) directed at the wise use of wetlands.

Vienna Convention for the Protection of the Ozone Layer (1985) and Montreal
Protocol on Substances that Deplete the Ozone Layer (1987) (Montreal Protocol)
which requires precautionary measures to be adopted to prevent ozone depleting

substances damaging the ozone layer.

United Nations Framework Convention on Climate Change (1992) (UNFCCC) and

its Kyoto Protocol (1997) has as two of its key principles, the precautionary

principle and the principle of intergenerational equity.

Convention on Biological Diversity (1992) as noted above, the basis of this

convention is to conserve biodiversity. In addition, the Convention is guided by the

precautionary principle and the principle of intergenerational equity.

Convention on the Non-Navigational Use of Watercourses (1991) which has as

its objective the sustainable use of water resources and seeks to give effect to
principles which include the precautionary principle and also the principles of interand intra-generational equity.

As a general observation, international treaties reflect agreements amongst States to adhere to

minimum standards and values when seeking to protect the environment. However, most
treaties, with the exception of the UNFCCC / Kyoto Protocol and Montreal Protocol do not
place enforceable obligations on those States that are Parties to them. However, States are
required to act consistently with their obligations and to give effect to those obligations in

their domestic laws. In this regard, the introductions of national laws that give effect to treaty
obligation are critical to translating those international principles into action on the ground.

B. THE MDGs AND THE ROLE OF SUSTAINABLE DEVELOPMENT:

The Millennium Declaration was adopted by 189 States in September 2000 at the UN
Millennium Summit. The Declaration outlines peace, security, and development concerns in
areas including the environment, human rights, and governance. The Declaration led to the
consolidation of a set of interconnected and mutually reinforcing development goals, targets,
and benchmarks into a global agenda known as the Millennium Development Goals
(MDG). The MDGs set out time-bound goals to achieve quantifiable results to:

Eradicate extreme poverty and hunger;

Achieve universal primary education;

Promote gender equality and empower women;

Reduce child mortality;

Improve maternal health;

Combat HIV/AIDS, malaria and other diseases;

Ensure environmental sustainability; and

Develop a global partnership for development.

Each of the eight goals has targets and indicators used to measure progress. Due to its
overarching nature, the concept of sustainable development underpins each of the MDGs.
In UN General Assembly Resolution, which adopted the outcomes of the 2002 World
Summit on Sustainable Development (WSSD), the General Assembly agreed to adopt
sustainable development as a key element of the overarching framework for United Nations
activities, in particular for achieving the internationally agreed development goals, including
those contained in the United Nations Millennium Declaration, and to give overall political
direction to the implementation of Agenda 21 and its review.

This Resolution demonstrates that the General Assembly considered the application of
sustainable development principles to be a crucial consideration to be taken into account in
the UNs work, and as an essential prerequisite for achieving the MDGs. It is, furthermore,
intuitive that for development to be effective, it must have a long term vision addressing

economic, social and environmental considerations. In other words, all development should
fall under the rubric of sustainable development.

B.1 Linking Environment, Economic Development, and Human Well-Being

By building better links between environmental principles and human and economic
wellbeing, environmental principles can be strengthened and better integrated into
development policies, thereby leading to better long-term economic, social, and
environmental outcomes from decision- and policy-making.
The World Summit provided an opportunity for world leaders to endorse quantifiable
indicators under Millennium Development Goals and establish stronger linkages in economic
and social development policy with the targets already set out in multilateral environmental
agreements. In this regard, it also included targets and benchmarks, under the Convention on
Biological Diversity process to achieve a significant reduction of the current rate of
biodiversity loss at the global, regional and national level as a contribution to poverty
alleviation and to the benefit of all life on earth; and the Kyoto Protocols 2012 targets to
reduce greenhouse gas emissions in developed countries.

C. Rio+20 Summit:
The United Nations Conference on Sustainable Development - or Rio+20 - took place in Rio
de Janeiro, Brazil on 20-22 June 2012. It resulted in a focused political outcome document
which contains clear and practical measures for implementing sustainable development.

In Rio, Member States decided to launch a process to develop a set of Sustainable

Development Goals (SDGs), which will build upon the Millennium Development

Goals and converge with the post 2015 development agenda.

Governments also decided to establish an intergovernmental process under the

General Assembly to prepare options on a strategy for sustainable development

financing.

They also agreed to establish a

high-level political forum for sustainable

development. The Rio +20 Conference also galvanized the attention of thousands
of representatives of the UN system and major groups. It resulted in over

700 voluntary commitments and witnessed the formation of new partnerships to

advance sustainable development.

Also, The Rio +20 affirmed the essential role of the rule of law in development. In the
Outcome Document, which was adopted by the UN General Assembly in September 2012,
participating states acknowledge that democracy, good governance and the rule of law, at
the national and international levels, as well as an enabling environment, are essential for
sustainable development, including sustained and inclusive economic growth, social
development, environmental protection and the eradication of poverty and hunger. The
participants also acknowledged the need for strong and effective legal and regulatory
frameworks, especially to ensure sustainable development through extractive industries, and
to expand development to the poor and vulnerable.

The two themes of the Conference were: (1) a green economy in the context of sustainable
development and poverty eradication; and (2) the institutional framework for sustainable
development (IFSD).

C.1. GREEN ECONOMY in the context of Sustainable Development and Poverty

Eradication:
It was one of the principal themes of the UNCSD, based on the UNGA decision that
established the Conference. This section affirms that there are different approaches, visions,
models and tools available to each country to achieve sustainable development, and the green
economy is considered one of the important tools, guided by the Rio Principles, Agenda 21
and contributing to the MDGs. A paragraph on green economy policies addresses, inter alia:

National sovereignty over natural resources;

Participation by all relevant stakeholders;

Sustained and inclusive growth;

International cooperation on finance, among other matters;

Trade discrimination;

Technology gaps;

Indigenous peoples and non-market approaches;

Poverty eradication;

Social protection floors;

Overcoming poverty and inequality.

On implementation of policies, there is recognition that each country can choose an

appropriate approach, resource efficiency, equitable growth and job creation, and of the
importance of evaluating a range of social, environmental and economic factors in decision
making. On partnerships and networks, the document notes positive experiences in some
countries, including in developing countries, of adopting green economy policies.
There is recognition of the power of communication technologies, of linking finance,
technology and capacity building, and in emphasis on the importance of governments in
showing leadership. Relevant stakeholders, including the UN regional economic
commissions and other UN bodies, international organizations, intergovernmental
organizations and Major Groups are invited to support developing countries efforts, and
business and industry are invited to develop sustainability strategies that integrate green
economy policies.
C.2. The Institutional framework for sustainable development (IFSD):
1. Strengthening the Three Dimensions of Sustainable Development: it discusses about
civil society engagement, with differences persisting over the venues for stakeholder
involvement and placement of the related text, and on concerns over monitoring roles. Also,
it agrees to strengthen IFSD, including by promoting the full and effective participation of
all countries in decision making processes; promote the review and stocktaking of progress
in implementation of all sustainable development commitments, and enhance the
participation and effective engagement of civil society. It calls for capacity building
especially for developing countries, including in conducting their own monitoring and
assessments.
2. Strengthening Intergovernmental Arrangements for Sustainable Development: This
subsection includes the UN General Assembly, UN Economic and Social Council
(ECOSOC), and the high-level political forum. Further it calls UNGA to integrate sustainable
development in its work, including through high-level dialogues. It commits to strengthening
ECOSOC, and looks forward to the Review of the Implementation of General Assembly
Resolution on the strengthening of ECOSOC.

3. Environmental Pillar in the Context of Sustainable Development: this section invites

the UNGA, to adopt a resolution strengthening and upgrading UN Environment Programme
by:

establishing universal membership in its Governing Council;

strengthening its engagement in key UN coordination bodies;

providing capacity building as well as facilitating access to technology;

progressively consolidating headquarters functions in Nairobi as well as strengthening

its regional presence; and

Ensuring the active participation of all relevant stakeholders, drawing on best

practices and models from relevant multilateral institutions.

It also encourages parties to multilateral environment agreements (MEAs) to consider further

measures for enhancing coordination and cooperation.
4. Regional, National, Sub-National, and Local: this section recognizes the importance of
integrated social, economic, and environmental data and information, as well as effective
analysis and assessment of implementation to decision-making processes; and encourages
action at the various levels to promote access to information, public participation, and access
to justice in environmental matters. It calls on countries to strengthen national, sub-national
and/or local institutions or relevant multi-stakeholder bodies and process, as appropriate.

D. The Rio Declaration on Environment and Development:

The Rio Declaration states that the only way to have long term economic progress is to link it
with environmental protection. This will only happen if nations establish a new and equitable
global partnership involving governments, their people and key sectors of societies. They
must build international agreements that protect the integrity of the global environmental and
the developmental system. Although not legally binding, the Rio Declaration enunciated the
key principles of sustainability including, but not limited to:
1. The principle of integration: The principle of integration underpins all of the principles
of sustainable development. It requires that both development and environment
considerations are taken into account in the decision making process. This requires both

ensuring that environmental considerations are integrated into development objectives

and that development needs are taken into account in applying environmental objectives.
2. The precautionary principle: Principle 15 of the Rio Declaration states "In order to
protect the environment, the precautionary approach shall be widely applied by states
according to their capabilities. Where there are threats of serious or irreversible damage,
lack of full scientific certainty shall not be used as a reason for postponing cost effective
measures to prevent environmental degradation".
3. The principle of intergenerational equity: The Rio Declaration recognized a number of
principles of equity. However, foremost of these are the principles of inter- and intragenerational equity. Inter-generational equity is defined as meaning that the present
generation should ensure that the health, diversity and productivity of the environment are
maintained or enhanced for the benefit of future generations. Intra-generational equity
involves consideration of equity within the present generation, such as use of natural
resources by one nation state meaning to take account of the needs of other nation states.
In other words, people within the present generation have equal rights to benefit from the
exploitation of resources and from the enjoyment of a clean and healthy environment.

4. The polluter pays principle: It says, those who generate pollution and waste should bear
the cost of containment, avoidance or abatement;

E. The role of NGOs in sustainable development:

Sustainable development requires public participation and effective access to the courts.
Without an engaged public and an independent judiciary, laws on the books may not be
implemented or enforced. The articles in this special issue provide evidence of the
importance of nongovernmental organizations. Non-governmental organizations (NGOs)
have played a major role in pushing for sustainable development at the international level.
Campaigning groups have been key drivers of inter-governmental negotiations, ranging from
the regulation of hazardous wastes to a global ban on land mines and the elimination of
slavery.

However, one characteristic these diverse organizations share is that their non-profit
status means they are not hindered by short-term financial objectives. Accordingly, they

are able to devote themselves to issues which occur across longer time horizons i.e. long
term objectives, such as climate change, malaria prevention or a global ban on landmines.
Public surveys reveal that NGOs often enjoy a high degree of public trust, which can
make them a useful - but not always sufficient - proxy for the concerns of society and
stakeholders and other interest groups.

The trouble with sustainable development of this sort is that, although its easy to picture,
it is hard to bring about. We may have a good idea of what wont work, but were less
certain of what will. Addressing poverty as an economic problem involves work such as
loaning money to people to start small businesses, or seeking to improve human capital
through helping children attend school. The rationale is that small improvements can be
compounding and ultimately self-sustaining: businesses expand; profits are reinvested;
educated children get better jobs. It is the sort of reasoning that NGOs can play as roles
in order to improve micro-economic condition from the very root of itself.

NGOs as a external agents are trying to bring change, they are inevitably going to be
imperfectly informed about this context. There are limits to what they can do and they are
often hampered by powerful local actors and state policies. Under these circumstances, it
is possible that the optimal approach in a hypothetical world of omnipotent NGOs wont
be the best approach in the real world where NGOs are constrained by others factors.

They also play a vital role in the shaping and implementation of participatory democracy.
Their credibility lies in the responsible and constructive role they play in society. Formal
and informal organizations, as well as grass-roots movements, should be recognized as
partners in the implementation of Agenda 21. The nature of the independent role played
by non-governmental organizations within a society calls for real participation; therefore,
independence is a major attribute of non-governmental organizations and is the
precondition of real participation.

LEAGL STRUCTURES & NATIONAL FRAMEWORK

for SUSTAINABLE DEVELOPMENT

A. Role of judiciary in Sustainable Development

Right to wholesome environment is a fundamental right protected under Article 21 of the
Constitution of India. But the question is, can the environment be protected at present
times when almost all the countries in South-East Asia are still at their developing stages?
Development comes through industrialization, which in turn the main factor behind the
degradation of environment. To resolve the issue, the experts worldwide have come up
with a doctrine called 'Sustainable Development', i.e. there must be balance between
development and ecology.
The judiciary plays a critical role in the enhancement and interpretation of environmental
law and the vindication of the public interest in a healthy and secure environment.
Judiciaries have, and will most certainly continue to play a pivotal role both in the
development and implementation of legislative and institutional regimes for sustainable
development.
The judiciary is also a crucial partner in promoting environmental governance, upholding the
rule of law and in ensuring a fair balance between Environmental, social and developmental
consideration through its judgments and declarations. The role of the legal system to ensure
environmental justice is only effective if it is universally accessible. The ability to develop
democracy and civil political participation exists where the system of access is fair, and does
not directly or indirectly exclude specific individuals, groups or organizations. Thus, there
should be a better law for sustainable development, to save our common future.

B. Environmental Justice in India

Environmental rights in India do not really exist in written form. They were rather created
from lawyers and activists from other available resources. At first, the general provisions
should be introduced before examining how the Indian Courts have decided on
environmental related grievances. The analysis will be limited on constitutional rights

Judiciary in India, more precisely, the Supreme Court and the High Courts has played an
important role in preserving the doctrine of ' Sustainable Development '. Parliament has
enacted various laws to deal with the problems of environmental degradation. In such a
situation, the superior courts have played a pivotal role in interpreting those laws to suit the
doctrine of ' Sustainable Development'.
It is worthwhile to mention here that principle 10 of Rio declaration, 1992 states that:
"Environmental issues are best handled with participation of all concerned citizens, at the
relevant level. At the national level, each individual shall have appropriate access to
information concerning the environment that is held by public authorities, including
information on hazardous materials and activities. States shall facilitate and encourage
public awareness and participation by making information widely available. Effective access
to judicial and administrative proceedings, including redress and remedy, shall be provided."

1) Vellore Citizen Welfare Forum vs. Union of India was the first case on which the apex
court had applied the doctrine of ' Sustainable Development' in which the dispute arose over
some tanneries in the state of Tamil Nadu. These tanneries were discharging effluents in the
river Palar, which was the main source of drinking water in the state .The Hon'ble Supreme
Court held that: "We have no hesitation in holding that the precautionary principle and
polluter pays principle are part of the environmental law of India". The court also held that:
"Remediation of the damaged environment is part of the process of 'Sustainable
Development' and as such polluter is liable to pay the cost to the individual sufferers as well
as the cost of reversing the damaged ecology."
But before Vellore Citizen's case, the Supreme Court has in many cases tried to keep the
balance between ecology and development. In Rural Litigation and Entitlement Kendra
1

Dehradun vs. State of Uttar Pradesh , which was also known as Doon valley case, dispute
arose over mining in the hilly areas. The Supreme Court after much investigation, ordered the
stopping of mining work and held that: "This would undoubtedly cause hardship to them, but
it is a price that has to be paid for protecting and safeguarding the right of the people to live
in healthy environment with minimal disturbance of ecological balance and without
avoidable hazard to them and to their cattle, homes and agricultural land and undue
affection of air, water and environment."
1

1989 AIR 594, 1989 SCC Supl. (1) 537

However in 1991, in the Rural Litigation and Entitlement Kendra vs. State of U.P. the
Supreme Court firstly allowed a mine to operate until the expiry of lease as exceptional case
on condition that land taken on lease would be subjected to a forestation by the developer.
But as soon as the notice was brought before the court that they have breached the condition
and mining was done in most unscientific way, the Supreme Court directed the lessee to pay
a compensation of three lacs to the fund of the monitoring committee. This has been directed
on the principle of 'polluter pays'.
Likewise, various forests have also been protected. In a landmark case Tarun Bhagat Singh
3

vs. Union of India , the petitioner through a PIL brought to the notice of the Supreme Court
that the state government of Rajasthan though empowered to make rules to protect
environment, failed to do so and in contrary allowed mining work to continue within the
forest area. Consequently, the Supreme Court issued directions that no mining work or
operation could be continued within the protected area.
But it would be unwise to hold that the courts always favour environment without giving any
significance to the development aspect when dispute arises between environment and
development.

In M. C. Mehta vs. Union of India, the Supreme Court issued directions towards the closing
of mechanical stone crushing activities in and around Delhi, which was declared by WHO as
the third most polluted city in the world. However it realized the importance of stone
crushing and issued directions for allotment of sites in the new 'crushing zone' set up at
village Pali in the state of Haryana.

Recommendations regarding Environmental Justice system:

In view of the involvement of complex scientific and specialized issues relating to

environment, there is a need to have separate Environment Courts manned only by
the persons having judicial or legal experience and assisted by persons having

2
3

scientific qualification and experience in the field of environment.

In order to achieve the objectives of accessible, quick and speedy justice, these
Environment Courts' should be established and constituted by the Union
Government in each State.

1985 AIR 652, 1985 SCR (3) 169

1993 SCR (3) 21, 1993 SCC Supl. (3) 115

The proposed Environment Court should consist of a Chairperson and at least two
other members.

The proposed Environment Court shall also have appellate jurisdiction.

Global law is necessary to solve the environmental cases and 12 law of principle is
helpful for the better judiciary process.

Thus it is quite obvious that the courts give equal importance to both ecology and
development while dealing with the cases of environmental degradation. Environment and
development are two sides of the same coin. Any one of these cannot be sacrificed for the
other. On contrary, both are equally important for our better future. Thus the responsibility
lies on the Supreme Court and the various High Courts to deal with these cases with caution
of high degree. Then only, we will achieve our goal i.e. to secure a pollution free developed
country for our next generation.

C. Role of Advocates and Courts in sustainable development:

The legal system plays a key role in governing sustainable business, Like Getting advice
from lawyers who understand sustainability issues will be the key to unlocking the
opportunity for sustainable development. Corporate and commercial law touches business
across the triple bottom line, from employment and corporate governance issues, to energy
and waste management, to tax and financing models, and has a fundamental influence on the
development of key sustainability themes such as collaboration in the supply chain or on
intellectual property. Lawyers that do not put sustainability in a box marked 'someone else's
problem', but understand how it connects with the bigger picture, have a genuine opportunity
to help unlock sustainable business opportunities for organizations with an ambition to lead
change and the appetite to see what is possible.
Traditionally, law as a profession has been regarded by many as reactive, that is, lawyers
follow their clients in the decision-making process. Yet lawyers help clients make fully
informed decisions. A lawyer educated about sustainability is able to provide clients with
information on the impact of clients decisions in terms of advancing or hindering a green
economy and operating within an effective institutional framework for sustainable
development. Lawyers may assist their clients in two ways to advance the themes of Rio 20
and sustainable development: we can educate clients, and we can reflect sustainability values
in our own operations as individual professionals and as a profession as a whole. With

information and awareness of the relationship between law and sustainability, lawyers can
further sustainable development by helping craft legally sound frameworks for the private
and public sectors to implement the steps that will undoubtedly be a product of Rio 20.
And on talking about the role of courts, they function as an arm of government that is critical
in the separation of powers doctrine, and they play a crucial role in giving effect to legislative
and executive intentions and pronouncements. Judicial power enables sovereign states to
decide controversies between itself and its subjects and between the subjects between
themselves.
Judiciary balances the interests of society with economic development, environmental
sustainability, and the competing interests of persons and entities.

Conclusions & Recommendations:

To successfully implement this National & International Framework for Sustainable
Development and to achieve sustainable development objectives and targets, the nation as a
whole must increasingly share in the common vision. All sectors, including all elements of
the state plus civil society, organised labour and business, need to take part in the social
contract to implement the emergent national strategy.
We need to promote simple actions on a large scale. As understanding of sustainable
development increases, and it becomes clear that this is the key mechanism for building
capacity and governance to achieve human development based on sustainable production and
consumptions systems, government and society across all spheres and all sectors will
approach and address the issues identified in this strategy with the seriousness they deserve.
In deciding on resource allocation and in making policy choices, the Executive should seek to
give effect to the vision of sustainability. Priorities and commitments should be clearly
articulated. While sustainability concerns do impact on all facets of life, we should keep our
focus on the identified five priority areas for strategic intervention and the importance of
mainstreaming these into the Accelerated and Shared Growth Initiatives and related
programmes. These priority areas should, over the coming three to five years, serve as
catalysts for policy changes that will facilitate the achievement of the desired ideal state as
articulated in the national vision for sustainable development.