IEL811

ASSIGNMENT 1

SUISTANABLE DEVELOPMENT AND THE UTILITY OF THE NORTH-SOUTH

PARADIGM IN RELATION TO INTERNATIONAL LAW

SIYABULELA MNGXEKEZA

STUDENT NUMBER:

3582555

LECTURER: PROF. Werner Scholtz

Professor of Law

University of Western Cape

Faculty of Law

1 September 2015

CONTACT DETAILS: 073 8513898

EMAIL : siyamngxekeza@gmail.com

TABLE OF CONTENT

Page

1. Introduction 3

2. The Concept of Sustainable Development 5

2.1 What is meant by sustainable development 6

2.2 The integration of the concept of sustainable development into law 6

3. The North-South 8

3.1The North-South divide 8

3.2The Relevance of the North-South paradigm today 9

4. Conclusion 11

5. References

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1. INTRODUCTION

Humans have inhabitant the earth for millions of years, yet it’s only in the

recent years that human activities have had a negative impacted on the

natural environmental processes of this planet. The destruction and

degradation of the global environment that is witnessed today can be linked to

the economic trading strategies that were implemented post World War II.1

These trading practices were associated with the use of non-renewable

resources and the degradation and destruction of the natural renewable

resources.

These activities have eroded the global environmental ecosystem upon which

the economy of nations depends. And if mitigating measures are not

enforced, it will lead to the destructive transformation or even total collapse of

this global ecosystem.2

In 1992, officials from 172 nations met at the Earth Summit in Rio de Janeiro

and made commitments to: sustainable development, and to ensure the

promotion of an economically, socially and environmentally sustainable future

for our planet and for the present and future generation. In 2012 the same

nations met again at the same venue for the Rio +20 conference and came to

a realistic conclusion that none of the commitments made, had been fulfilled,

but instead the global environmental condition had worsened since the last

time they met.3 It has become clear that a radical and rapid action plan is

1 Chichilnisky G Sustainable development and North-South trade (1998) 2 Marglin S Premises for a new economy (2013) 56(2) Society for International Development 3 The future we want, 2012 United Nations General Assembly Resolution 66/288 (2012).

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needed to preserve the Earth’s environment, but even in the wake of this

realisation, several obstacles have prevented a truly unified global

collaboration of nations to ratify and prevent any further damage to the Earth’s

environment.

One of the biggest obstacles to global collaboration has been the so called

North-South Divide an old arguiment between the perceived wealthy industrial

countries of the North and the poor developing countries of the South. The

idea or concept of a North-South divide has fuelled the activity of policy

makers and scholars alike. Therien4 indicates that the North-South divide has

been central to the explanation of world inequality and poverty from as early

as the 1960s until the late 1980s. To address the many differences between

the North and the South, the concept of sustainable development as defined

in 1987 by the World Commission on Environment and Development

(Brundtland Commission 1987) was used as one of the environmental

strategies to bridge the North-South divide.5 This was done despite the fact

that there was little or no agreement over what the concept precisely meant,

sustainable development means so many different things to so many different

people and organisations.

This paper will briefly look at the concept of sustainable development and its

role in bridging the North-South divide. We will also examine the relevance, if

any, of the North-South divide paradigm in terms of international law.

4 Therein JP Beyond the North- South Divide: The two tales of poverty (1999) 20(4) Third World Quarterly 723- 7425 WCED [World Commission on the Environment and Development]. (1987). Our common Future. Oxford University Press [The Brundtland Report].

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2. THE CONCEPT OF SUSTAINABLE DEVELOPMENT

2.1 What is meant by sustainable development?

For the purpose of this study we will look at the definition provided by the

‘Brundtland’ Report of the World Commission on Environment and Development

(WCED) which described sustainable development as ‘development that meets

the needs of the present without compromising the ability of the future

generations to meet their own needs’.6 Despite an on-going debate on the actual

meaning of sustainable development, a few common principles tend to be

emphasised: economic development, social equity and environmental protection

(3 subsidiary pillars of sustainable development).7 Carter8 in his book “The

politics of the environment” highlights some of these major common principles

starting with the precautionary principle which can be linked to the concept of

sustainable development in terms of environmental protection, by requiring that

states act in a responsible manner as not to damage the environment to such an

extent that it becomes irreparable as this would have a negative impact on future

generations.

It is however unclear how this precautionary principle should be applied and by

whom or to what extent in order for it to have an impact and benefit future

generations.

Equity is also highlighted as a major principle, without equity within and across

generations sustainable development would be impossible as it is often the

inequalities of resources and power that lead to environmental degradation. The

‘common but differentiated responsibilities’ of the 1992 Rio Declaration on

Environment and Development (Rio Declaration)9 encourages the involvement of

6 WCED (See note 5) 7 Drexhage J and Murphy D Sustainable development: From Brundtland to Rio 2012 (2010) Institute for sustainable development8 Carter N The Politics of the environment. (2007) 2229 Rio Declaration on Environment and Development, 13 June 1992, U.N. Doc. A/CONF.151/26 (Rio Declaration) principle 7.

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state nations but, does very little in the way of explaining how some of these

state nations should bear the cost of their perceived wrong doings from which

they benefitted, but resulted in the gradual degradation of the global environment.

The compartmentalised economic approach of the past, which was used to

enhance economic growth but neglected the environment or its interconnected

nature, was not equipped to deal with the many environmental issues that we are

faced with today. The economic subsidiary pillar of sustainable development

would have to be addressed by reform, integrating ecological considerations with

economic decision-making.10 This ideal of eco-economic integration as

embodied by the concept of sustainable development remains neutral with

regards to the implementation stage as a result of political pressure.

2.2 The integration of the concept of sustainable development into

international law

In international law, the principles of integration and reconciliation of economic,

social and environmental aspects function as the core for the concept of

sustainable development.11 This concept of sustainable development has been

used in several tribunals and international courts to resolve conflicts, it played a

vital role in the Gabcikovo – Nagymaros case decided by the International Court

of Justice (ICJ)12. This case, described as one of the most important cases to

ever come to the Court concluded that “sustainable development was a legal

principle, it had erga omnes(towards all) characteristics. With this new elevated

status of the concept of sustainable development the Court stated further that it

believes that sustainable development “...asserts the need to reconcile economic

10 WCED (See note 5)11 Grosse Ruse – Khan H The concept of sustainable development in international IP law- New approaches from EU economic partnership agreements? (2010) Max Planck Institute for Intellectual Property, Competition & Tax Law Research Paper12 GabCikovo-Nagymaros Project (Hungary vs. Slovakia), Judgment of 25 September 1997, I. C. J.Reports 1997, 7-84 – online available at http://www.icj-cij.org/docket/files/92/7375.pdf.

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development with the protection of the environment.”13 This case demonstrated

that new norms for environmental law had to be created.

Sustainable development is a primary objective for several agreements. It is

identified as a key principle in reconciling economic, social and environmental

priorities in both the United Nations Framework Convention on Climate Change

(UNFCCC)14 and the United Nations Convention on Biological Diversity (CBD).15

This concept of sustainable development also appears in non-binding

declarations and programmes of the global community such as the Rio

Declaration16 and Agenda 21.17 In 2002, in Johannesburg, South Africa, the

World Summit on Sustainable Development (WWSD) , produced 2 documents,

the Johannesburg Declaration of Sustainable Development18 and the

Johannesburg Plan of implementation.19 In these documents and many

documents of international law, it would appear that the backbone of sustainable

development is the idea of integration and reconciliation of economic, social and

environmental priorities.

13 Thompson LCJ The ICJ and the case concerning the Gabcikovo-Nagymaros Project: the implications for international watercourses law and international environmental law (1999) The Centre for Energy, Petroleum and Mineral Law and Policy (CEPMLP)14 United Nations Framework Convention on Climate Change, ILM 1992, Vol.XXXI, 849 - UN Doc.FCCC/INFORMAL/84 GE.05-62220 (E) 200705 (1992), online available athttp://unfccc.int/resource/docs/convkp/conveng.pdf.15 United Nations Convention on Biological Diversity, ILM 1992, Vol.XXXI, 818, online available athttp://www.cbd.int/doc/legal/cbd-un-en.pdf.16 Rio Declaration(see note 9)17 Agenda 21. Proc. of United Nations Conference on Environment & Development, Brazil, Rio De Janerio. UN, http://www.un.org/esa/sustdev/documents/agenda21/english/Agenda21.pdf(Accessed 18 August 2015)18 Johannesburg Declaration on Sustainable Development, adopted at the 17th plenary meeting of theWorld Summit on Sustainable Development, on 4 September http://www.un.org/esa/sustdev/documents/WSSD_POI_PD/English/POI_PD.htm19 The Johannesburg Plan of Implementation (online available athttp://www.un.org/esa/sustdev/documents/WSSD_POI_PD/English/POIToc.htm)

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3. The North-South

3.1 The North-South Divide

Developing countries (the Global South) view global environmental issues from a

historical perspective, they share a common belief that the global environmental

ecosystem degradation that we experience today is largely caused by historical

practices of developed countries (Global North).20 The Developed countries’

response to this perspective is to disregarded all historical contribution to the

degradation of the global environmental ecosystem and rather focus on mitigation

and future projections of global environmental ecosystem.

To understand the North-South divide, one has to look at how the colonial and

post-colonial history impacted the world. European countries (referred to as the

North due to geographical reasons) extended their territories by conquering Asia,

Africa and Latin America (referred to as the South). By creating economic

satellites states, the North paved a way for economic and social inequalities,

wreaking havoc on the livelihoods, environmental ecosystems, cultures and the

way of life of the indigenous people of those respective lands.21 Over time the

North became industrialised and enjoyed a high quality of life while the South, still

under the colonial rule, created and produced resources (mainly agricultural

products and raw materials) to benefit these Northern States.

It becomes very difficult to define the post-colonial era, because it included the

history and a relationship between multiple countries from The North to the

South. After World War II the South (independent African states and Asian

states) banded together in Bandung, Indonesia, to discuss economic

cooperation, human rights and self-determination, this was the catalyst of the

coalition between Africa, Asia and Latin America, which later became known as

Group 77 plus China.22

20 Chichilnisky G (see note 1)21 Gonzoles CG The North-South Divide in International Environmental Law: Framing the Issues (2015) 522 Gonzoles CG (see note 21:7)

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From the 1960’s to the late 1980’s this division between the North and the South

was at the forefront of global policy makers.23 On paper, The World Bank, The

International Momentary Fund (IMF) and the 1947 General Agreement on Tariff

and Trade (GATT) were designed to facilitate the flow of goods and services

across national borders as a way of bringing the gap between the North and the

South.

However, the deterioration of economic conditions created a new balance

between the North and the South causing these legal frameworks, due to the

diminished bargaining power of the South as a result of debt owed to the North,

to further trap the South in a vicious circle of exploitation and environmental

degradation, widening the gap between the North and the South.24

3.2 The Relevance of the North-South paradigm today

It might be time to re- think what is meant when we talk about the North-South

Divide. When looking at the world’s current state of international affairs it

becomes apparently clear that the changing nature of developing countries are

compromising their solidarity. The classic definition of the North-South Divide

might be outdated. In the first criticism of the North-South divide, Mickelson25

opines that it is impossible to speak of “the poor South” when you have countries

in East Asia like China, India and Brazil which have high performance economies

and countries in Sub Sahara Africa like Angola, Burundi, Cape Verde which have

stagnant economies in the same category.

This fragmentation of the idea of the poor South is a reflection of the

advancement of certain countries from the South to become like the countries of

the North, this has diminished the political usefulness of the image of the

23 Therein JP (see note 4: 723)24 Ponting C A green history of the world: The environment and collapse of great civilizations (1991) 194-212 25 K Mickelson Beyond a politics of the possible? South – North relations and climate justice (2009) 10 Melbourne Journal of International Law

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underdeveloped poor South. This is a very pragmatic but limited argument.

During his opening speech at the 1955 Bandung Conference in Indonesia,

President Soekarno expressed that the Idea of a global South was never about

uniformity, but rather the ideal that different independent nations can work

together to find solutions for the preservation, wellbeing and survival of the

Earth26.

The second criticism argues that the use of ‘North’ and ‘South’ obscures the

extent to which the ‘South’ is in the ‘North’ and the ‘North’ is in the ‘South’.27

There are rich people everywhere, but mostly in rich nations. This simple

statement served to clarify that even in rich developed “Northern” countries you

will find people who are vulnerable to global environmental degradation. One of

the major talking points tabled at the 2009 Indigenous People Global Summit on

Climate Change in Anchorage, Alaska,28 was the fact indigenous people of the

North are threatened by the global environmental degradation.

This is a compelling argument. Mickelson29 differentiates between vulnerability

and susceptibility, he opines that the South due to its abundance of natural

resources may only be susceptible to global environmental degradation and will

be able to withstand some of the severe effects associated with climate change.

He also points out that on the other hand, because the North has little or no

protections in the form of natural resources, it might be more so vulnerable to the

effects of climate change. Plausible as this may be, the fact remains, in terms of

global vulnerability and climate change there still exists a North-South divide.

The final argument that I would make would be, when faced with a global

problem that requires a global solution, is it really prudent to be still talking about

26 Indigenous People Global Summit on climate change, The Anchorage Declaration (Anchorage, US, 24 April 2009) http://www.indigenoussummit.com/servlet/content/declaration.html27 Therein JP (see note 4:726)28 The Anchorage Declaration( see note 26) 29 Mickelson K (see note 25)

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of a North-South divide, or should we rather be focus on a unified mitigation

strategy to meet the unprecedented scale of challenges we are yet to encounter?

Conclusion

Has Sustainable Development bridged the North-South divide in terms of

international law? I don’t believe we can talk about a North-South divide when

addressing environmental issues. So I would rather ask, has the concept of

Sustainable Development encouraged a global approach in terms of international

law?

The simple answer is yes it has. The position of sustainable development

(economic development, social equity and environmental protection) even though

flexible, has been very clear and dominant when addressing environmental

issues. As the meaning of the sustainable development changes over the years,

so will its flexible nature. Once considered to be its strength, today some consider

it to be see a weakness.30 The important thing to remember about the concept of

sustainable development is the fact that it serves as “weak” legitimation of

interest and policies. By encouraging, the global nations agree on even the

weakest meaning of this definition, that it serves as a vessel to reconcile different

positions and views, helping facilitate global cooperation between nations.

30 Drexhage J and Murphy D (see note 7)11

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(Accessed: 22August 2015)

Marglin S ‘Premises for a new economy’ (2013) 56(2) Society for International

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12

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13

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