The Role of Law in the Politics of Sustainable Development

The Role of Law in the Politics of Sustainable Development by Joseph Chun Global Sustainability – Ecological Footprinting 1999 Figures from WWF Ecological deficit: 20% Richest 15% of world population consumed 44% of world’s biological output Poorest 35% of world population consumed 13% of world’s biological output Contents  Sustainable development as a conception of distributive justice  Achieving distributive justice through fair and competent public participation in sustainable development decision-making The role of law in fair and competent public participation  Sustainable Development  Emergence of developmental and environmental concerns towards the ends of the 1960s • Concerns about the failure & environmental consequences of existing models of economic development • Developed countries became concerned about the effect of environmental destruction in developing countries on the affluent lifestyle of the developed countries, but developing countries saw this concern as a threat to the latter‟s development through industrialisation Stockholm Declaration 1972   The environment became a global issue General acceptance that lack of development as much a cause of environmental destruction as development  Vague consensus that development & environment could be harmonised but no elaboration on how this was to be achieved Top down approach – expert led – one way public involvement  Our Common Future  1987 - Report of the World Commission on Environment and Development - Our Common Future  Failures of development & failures of environmental management recognised as interlocking crises, therefore both had to be considered together “…development that meets the needs of the present without compromising the ability of future generations to meet their own needs” World‟s natural resources already strained, & could not accommodate the development of the rest of the world, through rapid industrialisation and conspicuous consumption, to the standard of living enjoyed in developed countries   Our Common Future  Development not about getting richer, but about meeting essential human needs & aspirations – emphasis on quality of & not quantity of economic growth In order to sustain the progress of humanity, overriding priority to be given to meeting essential human needs, e.g. education, health, clean air & water   When essential needs have been met, aspirations can legitimately be pursued, at a level that all can reasonably aspire to, & within ecological capacity Technological innovation alone insufficient, social re-organisation also required Sustainability implied a concern for equity between generations, a concern that had to be logically extended to equity within each generation   Rio Declaration 1992  Eradication of poverty worldwide, and in particular the needs of the least developed countries, is the top priority and the responsibility of all States and all people  States have “common but differentiated responsibilities” to achieve sustainable development – developed countries must reduce & eliminate unsustainable patterns of production & consumption, developing countries must pursue appropriate demographic policies Right to develop must be fulfilled so as to meet the needs of present & future generations  Sustainable Development  Motivation for sustainable development:  Self-interest insufficient motivation because of disparity in power – self-interest would be adequate if all had roughly the same power & were inter-dependent on one another Common interest – the flourishing of humanity – requires impartial thinking – John Rawls‟ veil of ignorance, Brian Barry‟s justice as impartiality (action must be justified along universal principles that other moral equals would reasonably accept) Are humans capable of acting in the common interest? Yes, humans have an inherent desire to justify actions to others on grounds they cannot reasonably reject but it‟s a weak motivation, especially when the stakes are high – like a muscle, the ability to think & act in the common interest atrophies through disuse, not least in the face of present social structures & institutional arrangements that reinforce selfinterest while dulling the common interest   Getting to Sustainable Development   If sustainable development is the objective, what is the means for achieving the objective? Our Common Future – problems of resource depletion and environmental stress arise from disparities in economic and political power; the economically and politically marginalised are often also the ones excluded from environmental decisions and most adversely affected by environmental degradation - a political system that secures effective citizen participation in decision making is necessary but not sufficient for the pursuit of sustainable development   Rio Declaration – Article 10 – Environmental issues are best handled with the participation of all concerned citizens, at the relevant level … Agenda 21 – Section 3 – Strengthening the role of major social groups improves quality of decision-making because it allows the diverse perspectives & expertise of these groups to be drawn on Decision-making in the Common Interest  Sustainable development decision-making (global as well as local) requires  value judgements are made to distinguish between basic needs and aspirations  knowledge about the environmental & human impact of our decisions  value judgements about the significance of these impacts  Knowledge and Values are interdependent Public Participation in Value Judgements  Making impartial ethical value judgements  Monological reasoning  hypothetical - individual lacks the diversity of perspectives & knowledge to make truly impartial judgements –monological reasoning can also sometimes be self-deception  Dialogical reasoning  Jürgen Habermas – instead of hypothesising in the mind what principles other people can reasonably accept, better to deliberate with other people on what is reasonably acceptable  limitation: how to have a dialogue with future generations?  Are our political representatives the best people to make ethical value judgements on our behalf? Public Participation in Knowledge Construction  Knowledge is an inter-subjective construction – it is value-laden – objective reality is always perceived through senses & interpreted in the light of prior knowledge, rather than directly experienced Science can be Manipulated  Scientists are humans  not detached robots – inevitably they have values, emotions, pride, ambitions, loyalties, jealousy, greed – these human traits inform their professional work (generating hypotheses, designing scope of experiments, detecting methods, selecting evidence, organising evidence, interpreting evidence, evaluating significance of findings, reviewing the work of others, etc.) – need greater diversity in scientific community (e.g. inclusion of women in scientific committees & research teams – A21, Ch. 24; inclusion of scientists from NGOs – A21, Ch. 27)  Research institutes are not always independent  depend on funding – often private funding, sometimes government – sponsors/funders have a say in research funding – sponsors can influence composition/leadership of scientific committees, research teams, & research agenda, access to research data, & data findings Public Science  Open science (peer review process) is not enough because scientific establishment must make value judgements in the course of their work, & these value judgements are properly within the domain of the community in which they operate when decisions values of the community must be assimilated into the scientific community, & this can only take place through public participation – A21, Ch. 31)  e.g. evidentiary value judgement bias in favour Type 1 error (rejecting a hypothesis when it is in fact true) - Who has the burden of proof? What is the appropriate standard of proof? - precautionary principle or presumption in favour of liberty/”progress” - Who decides when something is a sufficiently serious threat of harm to warrant precautionary action?  e.g. who decides the research agenda & funding for research? The scientists themselves, the research institute, the government, the corporation, civic society, or all of the above? Science is not Infallible  Induction  Falsification (Karl Popper)  Paradigms (Thomas Kuhn)  Modern science is reductionistic, compartmentalised (knowing a lot about very little)  Need to include other ways of knowing - local & contextual knowledge is holistic (knowing a little about a lot), e.g. knowledge of indigenous peoples (A21, Ch. 26); knowledge of farmers (A21, Ch. 32) Fair Decision-making  Thomas Webler, building on Habermas‟ communicative rationality:  Fair procedure is one in which everyone who is potentially affected by a proposed decision has an:  equal opportunity to be present or represented at the deliberation;  equal opportunity to put their concerns on the agenda;  equal opportunity to approve or propose rules for their discourse;  equal opportunity to select a moderator or facilitator who will enforce these rules; and  equal opportunity to make validity claims and to challenge the claims of others Competent Decision-making  Thomas Webler: fairness merely neutralises disparity in power, but does not guarantee „right‟ decision  Competent Decision: quality of rules leading to the “construction of the best possible understandings and agreements given what is reasonably knowable at the time”  Competence in     explicative discourse (definitions) *theoretical discourse (objective reality) *practical discourse (values) therapeutic discourse (subjective feelings)  Includes access to environmental information & appropriate justification of validity claims (according to the type of discourse) – justification of claims on the grounds of sheer authority (“because I say so”, or “trust me, I‟m the expert”) is not competent Fair and competent decisionmaking  Small scale (spatial & temporal) decision-making preferred because the larger the scale, the larger the potentially affected population, & the more cumbersome fair and competent decision-making becomes – the more inclusive the participation, the less deliberative it becomes & fragmented decision-making – environmental and developmental issues are complex & inter-related - all connected issues should be discussed together - the artificial demarcation of issues may be administratively or scientifically more convenient & manageable but it does not reflect reality  Holistic decision-making as opposed to reductionistic Does the Law Contribute to Fair and Competent Decision-making   Yes … and No. Patrick McAuslan: 3 ideologies of planning law –  Orthodox public administration ideology – the law exists to facilitate decision-making by the bureaucracy – statutory perspective Private interest ideology – the law exists to protect individual rights & liberty – common law perspective Public participation ideology – the law exists to provide for greater public participation in decisionmaking – weakest of the 3 ideologies because it challenges the status quo   Statutes and Fairness in Decisionmaking  e.g. Planning (Master Plan) Rules (Cap. 232, R1, 2000 Rev. Ed.)  Minimum of 2 weeks from advertisement of notice of proposal to amend Master Plan Minister to give written representor opportunity to be heard or hold public inquiry (for inquiry, only written representor and any persons considered to have special interest will be invited to attend) No opportunity to participate in choice of person conducting hearing or inquiry (Minister appoints whoever he thinks fit) or hearing or inquiry procedure    Person conducting hearing or inquiry submits findings and conclusion for Minister‟s consideration No need for advertisement of notice of amendment (and public participation) if Minster is satisfied that proposed amendments are “not material in nature”    Overwhelmingly, most statutes do not provide for any public consultation No public consultation necessary before passage of legislation or policy decision-making The Common Law and Fairness in Decision-making  Procedural fairness entitles individuals whose individual rights & legitimate interests are potentially adversely affected by an administrative decision to be consulted before decision is taken; not enough for a person to show that he is one of the concerned members of the public or that the decisions affects the public at large No right to be heard on issues that are outside agency‟s competence, even if logically relevant, may be legally irrelevant – fragmented decision-making rather than holistic decision-making Procedure for hearing generally based on adversarial procedure Person conducting hearing must not be personally biased or appear biased, but may be institutionally biased as long as he does not predetermine fetter his own discretion    Statutes and Competence in Decision-making  Generally, no right to access information in the possession of the government  Generally, statute provides for agency to have unfettered discretion to make decisions within the scope of its responsibility Common Law & Competence in Decision-making  Participants have a right to know the gist of the adverse case against them, but not the details, so as to rebut the evidence, but have no right to be informed of evidence favourable to their case  Must take into consideration all legally relevant factors and disregard all legally irrelevant factors Up to agency to make value judgement about the relative weight to be given to each of the relevant factors   Cannot make decision that is manifestly unreasonable – not manifestly unreasonable as long as there is some evidence to support decision - degree of review is stricter the greater the interference with fundamental rights or liberty Generally, agency is not under any legal duty to give reasons for its decision  Another World is Possible Possible Areas for Legal Reform  Right to participate in sustainable development decisions, policies, plans & programmes, & legislation, irrespective of individual interest  Right for participants to participate in agenda setting  Departure from the adversarial paradigm of participation  Adequate preparation time for participants  Presumption in favour of public access to environmental information  Funding for independent research by NGO participants  Duty for agency to give cogent reasons Conclusion  Sustainable Development is motivated by the common interest – priority must be given to meeting basic needs – aspirations may only be legitimately pursued within ecological limits, & at a level of consumption that all can reasonably aspire to A root cause of unsustainable development is the disparity in economic and political power Sustainable development can be advanced through fair and competent environmental and developmental decision-making    The law & its dominant ideologies advances fair and competent sustainable development decision-making to some extent, but is also an impediment to further advancement If sustainable development is to be achieved, it may be necessary (but not sufficient) to reform the law on public participation  The End