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Citation:
Nicholas A. Robinson, A Common Responsibility:
Sustainable Development and Economic, Social and
Environmental Norms, 4 Asia Pac. J. Envtl. L. 195
(1999)

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 Editorial

A Common Responsibility: Sustainable Development

and Economic, Social and Environmental Norms*
It would be presumptuous of me to cover the theme of this opening address with
any finality, for it is in your national reports - taken as a whole - that we shall see
the relationships between law, socio-economic development and environmental
management. I shall, therefore, listen closely today as the true overview unfolds
through each of the country reports that you will be presenting.
After the stirring opening ceremonies and the inspiring address of President
Estrada, and the focused and sagacious remarks of Retired Chief Justice Narvasa
and those of Chief Justice Hilario G. Davide, Jr, it is even more humbling to open
this session. The courts of South-east Asia and South Asia are leading the world in
articulating the fundamental legal principles of sustainable development. One
need only recall again the seminal decision of Oposa v. Factoranl in this regard.
There is little that a law professor and a lawyer from New York can add to the
wisdom of the many judges gathered here. In the spirit of our common purpose and
common responsibility, may I attempt to offer some thoughts on the importance of
the courts in attaining sustainable development.
We take our common purpose from the Rio de Janeiro Declaration On
Environment and Development, 2 adopted at the 1992 United Nations Conference
on Environment and Development (UNCED). Principle 27 provides that "States
and people shall cooperate in good faith and in a spirit of partnership in the
fulfilment of the principles embodied in this Declaration and in the further
development of international law in the field of sustainable development."
The Rio Principles recognise the role of the courts needed for their realisation.
The courts are a common concern and responsibility of all States, but at the same
time they are often given inadequate support and resources in most States. Therefore,

* Presented as a paper at the South-East Asian Regional Symposium on the Judiciary and the Law of
Sustainable Development, Manila, 5 March 1999.
1 (1994) 33 ILM 173.
2 (1992) 31 ILM 874.

ASIA PACIFIC JOURNAL OF ENVIRONMENTAL LAW, VOL 4, ISSUE 3 @ Kluwer Law international, I999

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given the inclusion by diplomats of the courts in the Rio Declaration, it is

important for the courts to cite, employ and advance the substance of the Rio
Principles not least because doing so builds support in return for the judiciary. The
Rio Principles define a content and a vision for sustainable development; they have
been endorsed by all States in South-east Asia and internationally, and therefore
courts may invoke them where relevant as part of the international law that the courts
apply. The Rio Principles are an important set of guiding precepts.
Sustainable development is not easy to secure. We just work at it, rather like
tending a garden. We cannot just sow seeds on the ground and hope that they will
sprout. If it were easy, the socio-economic development of the 1960s, 1970s and
1980s would have taken hold. But the trends of environmental degradation have
continued and are apparent to all: air pollution in our cities, traffic congestion and
loss of open space, the lack of potable drinking water and sanitary waste disposal
and treatment, the diminishing biological diversity and decline in fish stocks and
other renewable resources needed for food, the rise in sea level around the world,
and the continuing deterioration of the protective stratospheric ozone layer, just to
name a few. You know these unsustainable trends, and I need not dwell on them today.
The common foundation for sustainable development, in all its aspects, is an
ordered and just society. The judiciary is essential to this purpose. Judges are the
stewards and architects of order, equity and justice in a nation. The Rio Declaration
implicitly and explicitly recognises the judiciary's several roles in furthering the
processes and essential legal framework of the State, without which there can be
no enduring social and environmental and economic improvement.
Let us examine several of the Rio Principles that are relevant to the courts,
and then consider the challenges and aspirations that they pose for judges.
Rio Principle 1 states: "Human beings are at the centre of concerns for sustain-
able development. They are entitled to a healthy and productive life in harmony with
nature." This is the basic birthright we are all born with: the right to life and
life-sustaining elements. This is the right recognised in Oposa v. Factoran.
Rio Principle 3 states: "The right to development must be fulfilled so as to
equitably meet the developmental and environmental needs of present and future
generations." The courts do not exist just for the litigants before them, but have an
accustomed role as guardians of minors, and thus of future generations. Courts have
trusteeship duties toward nature as well.
Rio Principle 10 expressly sets forth the roles for the courts:
Environmental issues are best handled with the participation of all concerned citizens, at the
relevant level. At the national level, each individual shall have appropriate access to infor-
mation concerning the environment that is held by public authorities, including information
on hazardous materials and activities in their communities, and the opportunity to partici-
pate in decision-making processes. States shall facilitate and encourage public awareness and
participation by making information widely available. Effective access to judicial and admin-
istrative proceedings, including redress and remedy, shall be provided.

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In connection with Principle 10, while it is obvious that dispute resolution is

essential for maintaining ordered relations among individuals and enterprises, and
the State organs, and thus for sustainable development, we must recognise that the
role of the courts in questions of environmental quality or natural resource stew-
ardship are as difficult as they are of fundamental importance. The changes in
behaviour needed to attain sustainability require dislodging vested economic inter-
ests that sacrifice the future for short-term gain. The courts will face challenges
reminiscent of the civil rights movement in the USA, where the courts secured
"simple justice" and rights for minorities for the first time.
Principle 10 recognises implicitly that the courts must provide locus standi, or
standing for individuals to have access to justice. The public must be able to present
claims about their environmental well-being to the courts, or the courts cannot
fulfil their judicial roles in advancing sustainable development. Principle 10 also
acknowledges the need for broad access to governmental documents. The reasons
for sharing the State's knowledge with the people in the context of sustainable
development is clear. There are at least three reasons why this is so.
First, the environmental problems themselves are open and apparent. The
fact of much environmental harm is open for all to see. A polluter's waste is
traceable by a scientist, whether working for an environmental ministry or a local
criminal prosecutor or a neighbouring property owner or an environmental non-
governmental organisation (NGO). The chemical fingerprints can be found in a
laboratory, the source of a fire seen by air and via satellite photograph. If the courts
are to have the most complete factual record before them, then this documentation
needs to open so that it can be marshalled before a court.
Secondly, access to the written record brings knowledge and understanding
about how the public, government and economic parties together can solve
environmental problems. Conversely, a lack of access to information breeds dis-
trust and frustrates the "partnership" that is so essential to the Rio Principles. Open
and transparent governmental practices deter corruption and promote honesty in
government and commerce alike.
Thirdly, remedial measures can only be sought and fashioned by courts and
environmental ministries and the public, if information is shared and widely
available. Many new Constitutional provisions now require disclosure of environ-
mental information expressly. The 1998 Convention on Access to Information,
Public Participation in Decision-Making and Access to Justice in Environmental
Matters3 elaborates the role of information. Information is key to ensuring meas-
ured accountability of ministries and agencies and basic to judicial review.

3 (1999) 38 ILM 517.

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If we turn to Principle 11 on environmental legislation and standards, we see

further elements of judicial roles. Principle 11 provides:
States shall enact effective environmental legislation. Environmental standards, management
objectives and priorities should reflect the environmental and developmental context to
which they apply. Standards applied by some countries may be inappropriate and of unwar-
ranted economic and social cost to other countries, in particular developing countries.
The States of South-east Asia have enacted a great deal of very useful environ-
mental legislation. Many have framework laws in place; not all, but most of the
legislatures have responsibly done their part. Now the question is for administration,
compliance, and implementation and enforcement. There are important and obvious
roles for environmental ministries, plaintiffs, prosecutors and above all the courts.
Rio Principle 13 is also important.
States shall develop national law regarding liability and compensation for the victims of pol-
lution and other environmental damage. States shall also cooperate in an expeditious and
more determined manner to develop further international law regarding liability and com-
pensation for adverse effects of environmental damage caused by activities within their juris-
diction or control to areas beyond their jurisdiction.
Our judicial systems are essential to all procedures for liability. The courts must be
available to vindicate environmental injuries. An award of damages compensates
and serves to deter others from potentially damaging behaviour. The rules estab-
lishing basic liability depend upon courts for their application. Where
environmental degradation is widespread, the roles for class actions may be neces-
sary since there is not enough injury to one person to seek redress from a "bad actor"
who harms many while exploiting the environment for a short-term and narrow
profit; but this sort of harm accumulates and some redress is needed.
Without the benchmark of factually premised damage awards by courts, the
costs to society of repairing environmental damage are hard to determine. A
number of damage decisions for environmental injuries permit the State and
industry alike to determine statistically how much it is likely to cost to clean up a
problem. Once the costs are averaged and known, then insurance can be provided
to cover the clean-up costs of future pollution accidents. We have such systems in
place for marine oil pollution, and must apply them to the harm to land, nature and
public health. The courts of this region must build the database by assessing
damages carefully and clearly. An example of this at work is the clean up of
hazardous waste from the industrial revolution in the USA. Court decisions based
on a Congressionally imposed rule of "joint, strict and several" liability (a return to
the British rule of Rylands v. Fletcher 4 for inherently dangerous substances) have
caused the private sector to invest billions of their own dollars in cleaning up the
pollution of soil and ground water, and now insurance companies provide insurance
coverage for finding old waste on a property or in case clean-up is required for a new

4 (1866) LR (Law Reports) I Ex (Exchequer) 265; (1868) LR 3 HL (House of Lords) 330 (United Kingdom).

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accident, and anyone can purchase this coverage. Thus, court decisions are crucial
to building new economic instruments to help restore and maintain environmental
quality.
Yet more important than the awards of damages themselves is the remediation
and restoration that a court can require. The goal is to restore the productivity of
natural resources, and an even greater goal in sustainable development must be to
prevent and avert the harm in the first instance.
Stewardship, and the prevention of harm, can be promoted by court rulings.
One judicial doctrine, with ancient roots in roman law, common law, and the law
of many nations, is the Public Trust Doctrine, which has recently been established
clearly by the Supreme Court of India. This doctrine provides that the State is
steward or trustee for natural resources that benefit all the people, and cannot
alienate the public right to access to the sea coast, or shores or lakes and rivers, or
deny access to water or to the air upon which we all depend.
Another element of this stewardship is the Precautionary Principle, set forth
in Rio Principle 15:
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 dam-
age, lack of full scientific certainty shall not be used as a reason for postponing cost-effective
measures to prevent environmental degradation.
The courts in Australia have ably set forth this rule and implemented it in many
decisions.
We may ask how can the Precautionary Principle be adequately imple-
mented? What systems should be used? The Rio Principles endorse the use of
Environmental Impact Assessment (EIA). In this regard, Rio Principle 17 provides:
Environmental impact assessment, as a national instrument, shall be undertaken for proposed
activities that are likely to have a significant adverse impact on the environment and are sub-
ject to a decision of a competent national authority.
Serious EIA by local authorities and by sectoral ministries requires some form of
oversight, and judicial review is especially useful for this. The ministries or devel-
opers undertaking EIA inevitably chose to maximise the presumed benefits of their
projects, and are reluctant to look for and avoid the environmental harms and side
effects. Courts can objectively ensure that all relevant environmental impacts associ-
ated with development are considered and avoided or mitigated as much as possible.
Finally, let us return to part of Principle 7: "In view of the different contribu-
tions to global environmental degradation, States have common but differentiated
responsibilities." In the common responsibility for sustainable development, and
the common purpose for the partnership between the people and the State for
sustainable development, the judiciary is of crucial importance. These common
elements, however, necessarily will be implemented in different ways in different
places. The differentiated responsibilities depend upon and take into account the

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different legal traditions, cultural mores, varied legislation, and differing environ-
mental and developmental situations in each nation.
We can learn from how each court system implements its common but
differentiated responsibilities. We have the tools of comparative law to assist us.
Courts are accustomed to reading the decisions of tribunals in different nations on
legal questions that are presented before them, both to respect and learn from the legal
reasoning employed by thoughtful judges wherever they may be sitting in judg-
ment, and to ensure that like legal principles are applied in like ways to like
problems. The integrity of law rests in part in is predictability. Courts thus have a
common responsibility to share judicial innovations and to share experiences, as a
contribution toward sustainable development.
There are further reasons why courts, the judges, lawyers, court administrators,
and law professors must make time to share comparative environmental law experi-
ences on the ways courts can advance sustainable development. These further reasons
go to the heart of why we are here at this Symposium. Some of these reasons may be
self-evident, but they bear recalling. The diplomats adopting the Rio Principles had
high expectations for the courts, yet the courts in a material sense are the weakest of
the three branches of government. Courts succeed, not because of their materials,
power or force, but because of the trust invested in them. This trust arises from, and is
conferred upon the courts, by the other branches of government, by commercial
litigants, by the public, and by prosecutors and defendants alike. Courts succeed
because they ensure access to justice and render fair, principled decisions.
A court's authority is as great as the quality of respect that it inspires in the
public at large, and not merely in the litigants appearing before a court in any
particular case. Public respect, in turn, arises when the courts are seen to be doing
justice. The principles of sustainable development are advanced by courts when the
judges give precedence to values of a fundamental nature in the course of consid-
ering all and any other matters arising before their courts. Since nature is
continuing from one generation to the next, we inherit the benefits and problems
from our parents and pass on other problems and benefits to our children; the law
must have regard for sustaining the natural systems on which public health and
commerce alike depend.
Establishing the rule of law itself takes generations to accomplish, and it is a
task never completed since it requires continual care and cultivation to sustain the
rule of law. We all who toil in the world of law are like the gardeners, and our tasks
are ever more important because of our duties to advance the common responsibil-
ity of sustainable development. In the end, we see that the quest for sustainable
development is part and parcel of the judiciary's older quest, the pursuit of justice.
NIcHoLAs A. ROBINSON
Chairman, IUCN Commission on Environmental Law; Member of the Editorial
Advisory Board

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