Keywords

1 Introduction

“Law is not static. It changes incessantly” (Sacco 1991, p. 390). According to the words of one of the most prominent comparative lawyers , man has always entertained the illusion that he can find a criterion, a legal truth, or principle “for choosing among rules and institutions that is invariable, omni comprehensive and valid everywhere. Reality has so far refuted such illusions, even though this very noble aspiration to find eternal general rules is a powerful stimulus to the improvement of positive law, purging it of irrationality and spurring it on toward higher and higher values” (Sacco 1991, p. 390).

Thus, even in the still young history of environmental law have occurred multiple attempts to provide solutions to the many problems related to the environment that could be forever and universally valid. However, the complexity of the environmental field has quickly made it clear to the various decision-makers that, in front of the utopia derived from the creation of “one-size-fits-all” and eternal principles and rules, stood the economic, social, and political differences of each legal system, in addition to the advancing scientific and technological knowledge and new hazards to the environment.

The analysis of the diffusion of Sustainable Development (hereinafter SD) at the global level can provide an interesting starting point to see how even one of the most important and universally recognized concepts can give rise to different interpretations and applications. This diffusion is observed here through the mechanism of the circulation of legal model s, the cornerstone of comparative legal studies. According to Alan Watson, one of the most famous scholars of comparative history of law, the circulation of legal models would not only be the object of comparative investigation, but also the orientation criterion of this investigation and its goal. It is therefore considered as the foundation of comparative law (Watson 1977).

The circulation of legal models, made famous by Watson with the metaphor of “legal transplant”, provides a dynamic approach to the study of comparative law. According to this theory, a transfer of a rule from a legal system to another or from one people to another, not only is not an exception, but also proves to be a common practice since the most ancient of history (Watson 1974). Indeed, Watson considers borrowing as the most fruitful source of legal change (Watson 1996). On the other hand, Edward M. Wise considers the term “circulation” as ‘a more apt metaphor for the phenomenon in question than the term “transplant”. The point involves more than terminology: it bears on the perceptions of the kinds of questions it is relevant to ask’ (Wise 1990, p. 1). ‘It seems less apt to talk in terms of “transplants”; that makes a process almost as natural as breathing sound like major surgery’ (p. 12).

In recent years, the attention of scholars has focused in particular on the role that the circulation of environmental law models and concepts has had and continues to have in the development of environmental protection at the global level (Wiener 2001; Yang and Percival 2009; Ruiz Fabri and Gradoni 2009; Morand-Deviller and Bénichot 2010; Alogna 2014).

SD, as a new paradigm adopted at the international level, has shown its dynamics through the vertical and horizontal circulation of its models. Moreover, this contribution will be an opportunity to propose a third type of circulation of legal model s: the “oblique” circulation. Thus, the model of SD becomes the starting point for the development of regulations based on its principles, but those have different characteristics depending on the context where they are implemented.

Therefore, this chapter is an attempt at tracing the path made by SD through different stages of its evolution and through various legal systems, trying to shed light on the dynamics of this journey without losing sight of the typical goals of SD. To that end, will be analysed the “model” or “pattern” of SD since its inception (Sect. 2), the types and the reasons for its circulation (Sect. 3), and the dynamics of that circulation around the world (Sect. 4). In the last section, the conclusions will draw up the results of this analysis, allowing the understanding of the goals achieved and the steps still to be done in order to refine this model towards the evolution and betterment of environmental law.

2 The Model of Sustainable Development : History and Conceptualization

When we speak of “model”, we refer to the concept accepted within the comparative legal studies of “legal model ”, that is any “legal object” that could be an example to be copied, an ideal to follow, imitate, or as some commentators would say to borrow or to transplant (from which “legal borrowing” and “legal transplant”). This model may be the object of imitation in the form of a concept, a rule, an institution, a law, or a judiciary decision; though, in the past were even witnessed the imitation of codes and the “reception” of whole areas of law (Sacco 1991).

Even SD, because of its particular origins, its universal character, and its main objectives, takes the form of a legal model , providing an example and finding application in jurisdictions and legal systems other than the one in which it had its origin. Moreover, the very concept of “legal model”, thanks to its open and variable boundaries, can provide the right terminology to analyse SD, its unique figure in the history of law that’s able to defy all categorization and at the same time to adapt itself to any situation and context.

Accepted everywhere and criticized in several respects, SD is configured as a model formed due to the stratification and the combination of environmental concrete reasons and issues (i.e.: environmental degradation), philosophical and idealistic values (i.e.: the emergence of environmentalism), social (i.e.: the gap of wealth and well-being between the North and South countries), economic (i.e.: limits to growth), and demographic needs (i.e.: overpopulation of the world).

This model is essentially based on the idea that environmental protection cannot be separated from economic and social development problems, depending also on the state of technical and scientific knowledge. Therefore, it is proposed as a “dynamic” model fostering environmental protection through law and finding a balance between opposing and extreme tendencies as, on the one hand, fundamentalist environmentalism and, on the other hand, anthropocentrism, considered until today the dominant paradigm of the relationship between man and nature (Cordini 2007, p. 492).

While the ancestral origins of the model of sustainable development cannot be precisely dated, several authors have traced it back to ancient times, such as Judge Weeramantry who noted that “the concept of reconciling the needs of development with the protection of the environment is…not new. Millennia ago these concerns were noted and their twin demands well reconciled in a manner so meaningful as to carry a message to our age” (Voigt 2009, p. 12). Moreover, already more than 2300 years ago in his Critias, the Greek philosopher Plato interrelated the acceleration of the decline of ancient Greece to the deforestation of which he was a witness (Plato IV century B.C. p. 110 d).

However, it would seem that this concept is a particular product of the twentieth century and of its political and economic history—although Philippe Sands dates the idea of sustainability at least to 1893, “when the United States asserted a right to ensure the legitimate and proper use of seals and to protect them, for the benefit of mankind, from wanton destruction” (Pacific Fur Seal Arbitration, Chap. 10, pp. 415–19; Sands 1995, p. 198). The ideology of “development ” as economic growth has been considered a dominant geopolitical imperative since the end of World War II and at the same time the product of the Cold War. In fact, decolonization in Asia in the fifties and in Africa in the sixties posed the “necessity” to provide financial and technical assistance to the new nations that had not yet experienced the industrial revolution, also in order to attract them into the two opposed orbits of influence, by the US and the USSR. However, at the end of the sixties that ideology started to be gradually replaced by a new vision of the world, again by the countries of the North, which relativizes the economic development and stressed the need to respect the limited and not renewable resources of the Planet, considered as one interdependent system (Brunel 2012).

The first steps towards the construction of the model for SD took place just in a particularly iconoclastic year such as 1968, with the questioning of the economic development model en vogue in the industrial societies, based on unlimited growth. In fact, in that year UNESCO organised in Paris the first International Conference on the Biosphere. The participants of this conference warned about the irresponsible exploitation of natural ecosystems and, trying to counteract the classic trade-off between environment and development, advanced the idea of an “ecologically sustainable development .” Already on this occasion it was discussed the problem of national structures necessary to achieve the objectives of the conference, recognising that a unique formula, which corresponded to the realities existing in each country , could not be recommended, in particular because of the different stages of development . However, the Final Report of the Conference underlined the need to have national laws based on scientific data and invited the developed countries to make available their legislations to inform developing countries (UNESCO 1970, p. 254).

Four years later, the United Nations Conference on the Human Environment (UNCHE), held in Stockholm, laid the basis for the formulation of SD, considering the protection and improvement of the environment as “an imperative goal for mankind” to be followed along with the economic and social development. And for the first time it was declared internationally the fundamental human 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 its “solemn responsibility to protect and improve the environment for present and future generations” (Principle 1). On this occasion appeared the idea of “eco-development ”, to describe the process of “environmentally sound development” in the sense of a rational development, from an ecological point of view, accompanied by a judicious management of the environment (Prieur 2011, p. 52). Eco-development , indeed, could be considered the predecessor of SD (Ashford and Hall 2011, p. 126).

However, the first official use of the SD expression is contained in the “World Conservation Strategy. Living Resource Conservation for Sustainable Development”, a document prepared by two NGOs, the International Union for Conservation of Nature and Natural Resources (IUCN) and the World Wildlife Fund (WWF), together with the United Nations Environmental Programme (UNEP). According to the definition given by the “World Conservation Strategy”, SD “must take account of social and ecological factors, as well as economic ones; of the living and non-living resource base; and of the long term as well as the short term advantages and disadvantages of alternative actions.” Moreover, this document was a fundamental policy change for the international conservation movement, marking a shift from the traditional focus on a cure rather than prevention and confirming a growing belief that the assimilation of the aims of both conservation and development was the key to a sustainable society (McCormick 1986, p. 178).

In 1982, the “World Charter for Nature”, adopted by the United Nation General Assembly , proclaimed five “principles of conservation”, of which the fourth proposed that all ecosystems and organisms of the planet “be managed to achieve and maintain optimum sustainable productivity.” Unfortunately the latter document, like the Stockholm Declaration ten years before, only succeeded in making the concept of SD “a proposed world ‘ethic’ that urge[d] nations to simultaneously pursue the perceived competing moral principles of economic/social justice and environmental responsibility” (Hoda 1995, p. 80).

Finally, in 1987 the World Commission on Environment and Development (WCED)—created by the United Nations in 1983—issued the report “Our Common Future”, the so called Brundtland report (WCED 1987) where SD was defined as a “development that meets the needs of the present without compromising future generations to meet their own needs. It contains within it two key concepts: the concept of ‘needs’, in particular the essential needs of the world’s poor, to which overriding priority should be given; and the idea of limitations imposed by the state of technology and social organization on the environment’s ability to meet present and future needs.” This document improved the “ethical idea” of SD derived from past formulations, becoming a “conceptual framework for policy analysis” (Hoda 1995, p. 81), “a broad policy objective, or at least an aspirational goal” (Voigt 2009, p. 15). The Brundtland report was a real breakthrough: for the first time an international commission declared that human activities threatened the world. “The time has come to break out of past patterns. Attempts to maintain social and ecological stability through old approaches to development and environmental protection will increase instability. Security must be sought through change” (WCED 1987 Chap. 12, § 4).

What the Brundtland Commission proposed was a true “paradigm shift”: breaking out with past models, it asked to all governmental agencies, international organizations and major private-sector institutions to balance economic growth with environmental protection , making SD an integral part of their mandates. “These [ones] must be made responsible and accountable for ensuring that their policies, programmes, and budgets encourage and support activities that are economically and ecologically sustainable both in the short and longer terms. They must be given a mandate to pursue their traditional goals in such a way that those goals are reinforced by a steady enhancement of the environmental resource base of their own national community and of the small planet we all share” (WCED 1987 Chap. 12, §17).

During the Conference on Ecologically Sustainable Development at Copenhagen in 1991, the United Nations Industrial Development Organization (UNIDO) discussed the priority issue of the relations between industrialized and developing countries , with regard to the application of an environmentally sustainable industrial development . This was really an important topic considering that, from the point of view of industrialized countries, the developing ones represented a threefold risk in the reproduction of the “Western model” of economic growth: an economic competition (for the formers), a growing withdrawal from the resources of the planet (that until then were mostly consumed from the Western world), and an environmental impact exacerbated by rapid population growth in these countries (Brunel 2012, p. 18). The creation of the SD model appeared, therefore, as a necessity and urgent.

On this basis, the United Nations Conference on Environment and Development (UNCED), held in Rio de Janeiro in 1992, officially consecrated SD as the foundation of international cooperation and as “an important global policy that could no longer be ignored” (Voigt 2009, p. 17). The long-awaited “paradigm shift” was taking place thanks to the Rio Declaration (1992) (with its 27 guiding principles), which introduced SD as a “new approach and philosophy” to international relations, and to the Agenda 21 (Agenda for the 21st century), according to which countries should “ensure socially responsible economic development while protecting the resource base and environment for the benefit of future generations” (Agenda 21 1992 § 8.7).

According to Philippe Sands (1995, p. 198), SD is “a general principle” according to which “states should ensure the development and use of their natural resources in a manner which is sustainable”. Today, most of the scholarship, various treaties, and judicial decisions have recognized SD as an “emerging principle of customary law” (ex multis Voigt 2009; Sands 2003; Hunter et al. 2001; Kiss and Shelton 1994); while, some authors consider it just as a policy objective of international law (Cordonier Segger 2008, p. 117; Lowe 1999, p. 27). This and other disagreements have provided the basis for numerous discussions on the legal status of SD, related both to its vague conceptual boundaries and to its practical applications.

Although SD is widely considered as an elusive concept, its four main components are considered clear: the need to preserve natural resources for the benefit of future generations (intergenerational equity ); the ‘equitable’ use of natural resources, which implies that the use by one state must take into account the needs of the others (intra-generational equity); the aim of exploiting natural resources in a manner which is ‘sustainable’, or ‘prudent’, or ‘wise’, or ‘appropriate’ (sustainable use); and the need to integrate economic, social and environmental policies (integration) (Sands 1995, p. 199). All these components of the “legal model ” of SD give rise to a concept whose objective is even broader than environmental law itself. In fact, to reach its full application it has to be supported in its three typical dimensions or “three E’s”: Environment , Economy, and Equity.

Some scholars see the development of this new model as an evolution—or a revolution: SD, according to Stéphane Doumbé-Billé, makes the previous law seem old, pushing towards new rules that are more compliant to the evolution in progress. “Il s’agit là d’une véritable révolution juridique” (Doumbé-Billé 2007, p. 92)—of environmental law: from a law centred on the protection of the environment to a polycentric SD law, where the centre is to be found in the balance and conciliation between the three pillars of Sustainability (“three E’s”) and to be reinvented in every public policy or decision, both public or private. The result of such a balance and conciliation is the creation of a new legal field based on a comprehensive and interactive approach concerning the actual complex environmental problems . Thus, this new legal field can actually generate suitable solutions for addressing global and current issues (Meynier 2014, p. 128).

3 Typologies and Reasons for the Circulation of the SD Model

Since the consecration of SD as a model at UNCED in Rio de Janeiro, it has been more than twenty years and meanwhile the circulation of the concept and its components worldwide have occurred. This circulation, as expected, was mainly “vertical”, resulting in national applications of the principles of SD in the various policies and regulations, and within the judicial decisions. Even from a chronological point of view this “vertical” type has been the main one, precisely because of the formation of such a model at the international level, as explained above.

However, there has also been a “horizontal” circulation—between national systems, that is the “classic” type of circulation of the legal models or “legal transplants”, widely discussed in the literature of comparative law, especially in the field of private law (Watson 1974; Sacco 1991; Ajani 2007; Mattei 2008; Siems 2014)—in which the “importer” country imitated the application of this model in another legal system, more rapid in its adoption and implementation.

Finally, we propose here a third type of circulation, a tertium genus between the horizontal and the vertical one: the “oblique circulation ”. This is the circulation of a legal model derived from the “conditional” imposition by international actors such as the World Bank , the International Monetary Fund (hereinafter IMF), or other regional and international organizations.

The main difference between these three types of circulation can be found in their dynamics: in the horizontal one the legal systems, between which the imitation or borrowing of the model occurs, are hierarchically on the same level (according to international law) as two sovereign countries; in the vertical one the model circulates between a higher-level legal system, as international law or European Community law, and a system subordinate to it, as a national legal system, or vice versa (also called “trans-echelon” borrowing, see Wiener 2001, p. 1301); finally, will be called oblique the circulation of a model between an international organization and a national system, without any hierarchical relationship between the former and the latter that can legitimate the imposition of a rule of law, like in the relation between the World Bank and several transitions or developing countries .

It is necessary, however, to point out that on this last particular profile a rich literature already exists in the comparative legal field, which however did not consider this kind of experience as a type of circulation but simply as a “cause” of imitation, halfway between the “prestige” and the military or colonial imposition (Mattei 2008, p. 180). These are considered by most of the comparative law doctrines as the two fundamental causes of imitation. The prestige is considered the most common cause, such as a desire to appropriate the solutions of others because they are considered full of such quality that the doctrine has never been able to clearly define. Sacco believes that “[t]he analysis of this term is, if anything, the province of other disciplines” (Sacco 1991, p. 398). On the other hand, the military conquests and colonization of submitted peoples constitute the second fundamental cause of circulation of legal models : thanks to military force, the diffusion of the law of the most powerful nations takes place. However, as pointed out by the same author, “[r]eceptions due to pure force (…) are reversible and end when the force is removed” (p. 398).

As a matter of fact, the so-called “conditionality ” or “conditionality clause”, mechanism behind the oblique circulation in the form of numerous legal reforms in the developing countries, has been analysed extensively by the comparative doctrine and not without criticisms. According to some scholars, this paradigm hides, behind the formalistic concept of “conditionality”, interests of political and economic opportunity (Ajani 1995, p. 115). Furthermore, this mechanism aims to spread, instead of legal models functional to the development of an economy controlled by the public sector, models to promote the free market. In fact, some political analysts express radical criticism towards institutions such as the IMF and the World Bank , which in their opinion would be “the neo-colonial continuation of Western tutelage” and “thus responsible for the lack of congruence, legitimacy and functionality of modern transplants in developing countries” (De Jong and Stoter 2009, p. 317).

This mechanism provides a system of benefits such as loans, debt relief or bilateral aid by international financial institutions like the World Bank and the IMF, which grant such benefits “on condition” that the recipient country changes certain aspects of its laws or legal institutions in accordance with Western legal models, in order to enhance aid effectiveness. His “obliquity” is due, therefore, both to the structural element of the relation between the international organization and the importing country (neither vertical nor horizontal in its nature), and to the source of the circulating model, legislation or institution, often coming from the United States, which is “transplanted” with a “distorted” top-down modality. The reasons of this “americanization” are mainly of two types: first, the importance of the development of the US environmental standards, as well stressed by Sands: “In many respects the United States is rightly considered to have the most highly developed rules of environmental protection of any nation , and is widely recognized as having played the primary role in establishing and developing that branch of international law now known as international environmental law ” (Sands 1994, p. 323); secondly, the US role and great influence within these international institutions, such as the World Bank and the IMF, whose voting power is based on a quota system, linked to financial contributions from member governments (US has a percentage of the total number of votes equal to 16.28 % for the World Bank and to 16.75 % for the IMF).

Precisely such a “top-down” approach seems to cause most of the criticisms, being seen as an “undue interference in the national sovereignty and democratic accountability of countries in the developing world” (Siems 2014, p. 277). Several authors have pointed out the bond of this type of circulation to the evergreen movement called “law and development ”. For instance, the words of John Merryman explain effectively the concept behind the movement born in the United States after World War II: “Development is a euphemism for Progress, and the work of law and development is to lead the way to Progress through law reform” (Merryman 1977, p. 463). Thus, oblique circulation appears as an attempt to impose Western or global standards on developing countries , pursuing instances of post-colonialist and neo-imperialist type whose end is nothing more than the creation of an ideology functional to the exploitation of the resources of developing countries (Mattei and Nader 2008).

Certainly, it is an indicative fact that in recent years this oblique circulation of legal models, through the means of, or directed by supranational institutions have largely replaced the one between individual states (horizontal), which formed the common practice until the first half of the last century. These institutions now support intergovernmental agreements aimed at encouraging reforms and introducing soft law rules , proposals, and recommendations for legal changes. Today, the “prestige” is, therefore, an increasingly insufficient reason to cause a circulation of legal model s.

However, apart from these general reasons behind the circulation of legal models , there are additional ones particularly related to the concept of SD. For example, the Rio Declaration provided for cooperation between States with the objective of strengthening “endogenous capacity-building for sustainable development ” (Rio Declaration 1992 § 9). The exchange and therefore the circulation of solutions seem to be essential in all areas of science and technology, precisely in order to improve the understanding of environmental issues. Furthermore, the development , but also the adaptation, diffusion, and transfer of technologies are the basis of SD, as a goal to achieve nationally and locally, yet always in a global collaboration, as required by Principle 27 “…in the fulfilment of the principles embodied in this Declaration and in the further development of international law in the field of sustainable development.”

Agenda 21 also recognizes the need for the circulation of the model of SD, through what it calls “a new global partnership”, which “commits all States to engage in a continuous and constructive dialogue inspired by the need to achieve a more efficient and equitable world economy, keeping in view the increasing interdependence of the community of nations and that sustainable development should become a priority item on the agenda of the international community” (1992 § 2.1). In addition, even the oblique and horizontal dimension of such circulation are recognized, with the identification of its main actors: “The responsibility for bringing about changes lies with Governments (…) in collaboration with national, regional and international organizations, including in particular UNEP, UNDP and the World Bank . Exchange of experience between countries can also be significant. National plans, goals and objectives, national rules, regulations and law, and the specific situation in which different countries are placed are the overall framework in which such integration takes place” (§ 8.2).

Moreover, in order to ensure the effective follow-up of the Conference, Agenda 21 created the Commission on Sustainable Development (replaced in September 2013 by the United Nations High-level Political Forum on Sustainable Development), which represents a fertile ground for the circulation of the model of SD, through its mechanism of reviewing the different countries’ progress in achieving the specific goals of Agenda 21. In fact, understanding how other countries have implemented the model of SD may provide an occasion to imitate foreign experiences (Dernbach 1998, p. 281).

However, the Rio Declaration warned against a non-judicious use of the mechanism of legal transplant. In fact, Principle 11 argued the importance of an effective environmental legislation, able to take into account the developmental and environmental context in which it is applied. Indeed, not considering the characteristics of the system in which a particular model of SD has to be implemented, could result in “inappropriate and of unwarranted economic and social cost” to the importing country , particularly in the case of developing countries . The environmental “compatibility” of the model of SD, with respect to the context of application or reception thereof, becomes, therefore, a prerequisite for its effective circulation. This compatibility is the basis of what some comparatist scholars identified as “transplant effect”, that is the weak effectiveness of the legal transplant when is not adapted to local conditions, or it is imposed by top-down or conditional mechanisms, or when the population was not familiar with the law (Berkowitz et al. 2003, p. 168). Moreover, according to this scholarship, “only if demand for law is high, will there be high voluntary compliance and will a society invest in the legal institutions necessary for upholding the legal order”.

This is one of the most important problems encountered in the circulation of the model of SD, which has two dimensions: on the one hand, the transfer of inappropriate and unsuitable approaches with regard to the local conditions of the importing countries; and on the other, the desire to universalise the solutions to implement SD (Le Prestre 2005, p. 271). In fact, such a model, despite its claimed neutrality and universality in achieving the objectives of environmental protection , can be experienced by developing countries as an interference with their right to development, with the reduction of the available resources in their territory for the sake of a global environmental protection .

In this perspective, the conditionality clause—or in this case the “eco-conditionality” clause.Footnote 1 Even “Our Common Future” emphasized that ≪[t]he World Bank has taken a significant lead in reorienting its lending programmes to a much higher sensitivity to environmental concerns and to support for sustainable development≫ and how much ≪[i]t is therefore essential that the IMF, too, incorporate sustainable development objectives and criteria into its policies and programmes≫ (WCED 1987 § 6.2.1. 103–104)—being a kind of diplomatic pressure and in contradiction with the customary principle of non-intervention regulated by the Convention of 26 December 1933 on the Rights and Duties of States, faces very often a social rejection (Borràs Pentinat 2006, p. 400). In fact, the basis for this refusal is the understanding by the loan-applicant countries that such eco-conditionality , just as the financial and more traditional one, is set indirectly by the hegemonic states, which control—economically and in proportion to their participation—the institutions that manage the operations. For this reason there can be a strong social rejection in the importing countries towards the model in question.

To complete the analysis of the reasons for the circulation of such a legal model , we can refer to the classification made by an experienced doctrine in the matters of constitutional transplants and borrowings. The reasons behind this type of circulations, in fact, can be appropriate for the case of the model of SD: functionalist ones (so-called “cost-saving” imitation, to avoid reinventing the wheel); reputational ones (or “legitimacy generating” effects; i.e.: to signal to the world community the breaking with a non-sustainable past); normative universalist reasons (i.e.: the recognition of SD as a universal set of principles); sociological ones (driven by an economic or political elite to promote their own political interest); and “chance” circulations: those that lack any of the precedent reasons, purely determined by chance (Perju 2012, p. 1318).

Finally, it should be emphasized that all these reasons are acting in connection with a particular feature of the model of SD, namely the vagueness in its contours and in its application. Then, this feature brings SD within the category of “vague formulas”, the importance of which was underscored by the comparative literature with regard to the process of legal transplantation. As a matter of fact, terms such as “due process”, “governance ”, “reasonableness”, “rule of law”, “transparency”, and “accountability” are fundamental “picklocks” to direct the attention of the importer system on a concept that has already demonstrated its experience as “constitutional standard” in other hegemonic jurisdictions. Thereafter, it is just necessary to carry or transplant the operating rules for the adoption of this already accepted concept (Ajani 2007, p. 5).

4 The Dynamics of the Circulation of the SD Model

The circulation of the model of SD is realised through its three dimensions or types: vertical, horizontal, and oblique. However, it must be emphasized that the three dimensions, although they may be considered independently of one another, are strongly interconnected. In fact, the diffusion of the model in question emerges in the global legal landscape as influenced jointly by the circulation of the declarations and international agreements, supported by the example of the countries’ most sustainably efficient (potential exporters of the model) and conditioned, in certain contexts, by the pressure of the international and regional financial organizations. The importance of “bottom-up” approaches in applying that model can also not be forgotten: the role of NGOs and associations in defence of the environment and social rights; national and multi-national businesses with their adoption of virtuous behaviour; and the public as green consumers and citizens taking responsibility for everyday actions that can make SD a reality at the local level.

The dynamics of the circulation of the model of sustainable development could be described through a number of examples in order to show their breadth in the global diffusion. However, in this section we will focus on one type of comprehensive and multi-dimensional instrument, fundamental in the circulation of the model under consideration: the national sustainable development strategies and policy plans.

In the case of the vertical circulation of the SD model, the influence of international law, along with regional supranational law, such as the Community law,Footnote 2 are main factors of this “circulatory” type. In particular Agenda 21 , in its Article 8.13, provided the boost needed to allow the circulation of this model, calling “on governments to adopt and implement law and policies that successfully guide both private and governmental decisions for sustainable development , and to regularly assess and modify them when appropriate to improve their effectiveness” (Dernbach 1998, p. 29). However, the vertical circulation of the SD model is also working through the case law of the International Court of Justice (ICJ), as observed in the case concerning the Gabcikovo-Nagymaros Project, Hungary/Slovakia (ICJ 1997 140; See also Akhtarkhavari 2010, p. 132). Moreover, the WTO Appellate Body (1998) in the Shrimp Turtle Case II also argued SD in the context of article XX (g) of the 1947 General Agreement on Tariffs and Trade (GATT).

As it generally happens as a result of international conventions or regional forums, the first countries able to reproduce and implement policies, standards, or the principles of law laid down therein, are considered exemplary actors of the international community. The chronological criterion in the vertical circulation is usually an interesting index to find out who are the leaders and who are the laggards in a particular field or sector, and this is also true for SD.

We can take into consideration the paradigmatic example of the National Sustainable Development Strategy (NSDS), which in the aftermath of the Rio Conference 1992 was the basis for the application of the SD model globally. Article 37.4 of Agenda 21 provided that “[e]ach country should aim to complete, as soon as practicable, if possible by 1994, a review of capacity- and capability-building requirements for devising national sustainable development strategies, including those for generating and implementing its own Agenda 21 action programme.” NSDS constituted the first attempt to achieve better coordination and integration of the SD model at the national level through four (sub-) dimensions: “horizontally (across policy sectors), vertically (across political-administrative levels as well as territorially), temporally (across time), and across societal sectors (public, private, academia, civil society )” (Pisano et al. 2013, p. 6). Thus, in the nineties several European countries emerged as leaders in the application of their NSDSs: Sweden and the United Kingdom in 1994; Switzerland in 1997; Finland in 1998 (Pisano et al. 2013, p. 9).

However, the spread of such a single document that incorporated the economic, social, and environmental dimensions of SD took place, quickly as well, even in systems such as China (1993), Philippines (1996), and South Korea (1996) (Swanson and Pintér 2004, p. 9), where the environmental and social protection were coordinating with economic growth in an initially only theoretical framework of SD. Actually, the socio-economic reality of some developing countries could not permit fully realizing this model unless over a period of time longer than that of the European countries, and with different modalities. Indeed, some commentators argued that many countries in the developing world, while acknowledging verbatim the notion of SD in their respective constitutional and statutory texts, in practice showed a dichotomy between legal rules and effectiveness (Cordini 2007, p. 498).

Moreover, these differences in the applications of the model of sustainable development emerged clearly during the United Nations Conference on Sustainable Development (Rio de Janeiro, from 20 to 22 June 2012), which ended with the adoption of Resolution 66/288 by the General Assembly of the United Nations . Indeed, the final outcome of the Rio+20 Conference took into consideration an important fact: “there are different approaches, visions, models and tools available to each country, in accordance with its national circumstances and priorities, to achieve sustainable development ” (UN 2012 § 56).

It should be emphasized that environmental standards, although technical and seemingly free from the resistance found in the transplant of socio-cultural rules, such as those of family law (linked more deeply to their legal-cultural and traditional substratum), also need a political and social acceptance. Indeed, an eminent comparative lawyer has highlighted that the imitation of a rule depends on the circulation of the related political idea (Sacco 1990, p. 151). Thus, the prestige of the origin system is not enough, especially in the case that the legal model expresses immediately a political choice, values, and ideals (Pegoraro and Rinella 2007, p. 97).

This is clearly the case of the horizontal circulation of SD, which as a constitutional model is subject to the phenomenon of imitation-reception between different national legal systems, like what usually happens for the private law models. This circulation generally requires a comparative analysis on the subject (a single rule, a principle, a legal instrument, or even an entire code) by the institutions of the borrower country. In fact, one of the fundamental functions of comparative law is considered to provide materials to aid in the preparation of legal texts. In the process of drafting a new constitution or in its review, usually the specific national organs perform comparisons between the solutions tested elsewhere, and between them and their own frame of reference in terms of values and fundamental political choices. Moreover, we can differentiate between “legal imitations”, when the legislator imitates the model produced by another legislator; “scholarly imitations”, which operate on a theoretical level; “judicial imitations”, the so-called “dialogue between judges” (Pegoraro and Rinella 2007, p. 91). However, a “constitutional model” can affect the ordering of other legal systems, yet not being exactly reproduced as under the effect of a cloning.

An example of such circulation is made by India , which in its Constitution contemplates the two fundamental and conflicting aspects of SD: the right to development and the right to a clean and healthy environment , both considered as necessary and complementary parts of the “right to life ” under Article 21 (Sahasranaman 2012, p. 25). In 2006, in a legislative effort directed toward the implementation of SD, India has enacted the National Environmental Policy (NEP) as a guide to regulatory reform, programmes, and projects for environmental conservation. Moreover, the NEP reviews the enactment of legislation by agencies of the central, state, and local government and ensures that the principal objectives correspond with the main elements of SD: conservation of critical environmental resources and efficiency in their use, intragenerational and intergenerational equity , and integration of environmental concerns in economic and social development .

In this case, the model circulated was a German one: the 2002 National Sustainability Strategy (NSS), considered one of the most successful in Europe (Pisano et al. 2013, p. 10), fundamental for drafting the Indian NEP (Alogna 2014, p. 63). As a matter of fact, also the German NSS stressed that “Germany is inseparably linked to the world. It follows from this that there can no longer be local or national island of prosperity and security in the long term. (…) On the other hand, it is precisely the industrial nations that can prove with a strategy for sustainable development that it is also possible to link this with successful economic development . This also offers perspectives for developing countries . A national strategy bringing together economic, ecological and social dimensions in an integrated vision, and succeeding in practice, would also exercise great appeal internationally” (German Government 2002, p. 3).

Another model, even precedent to the Rio Conference in 1992, is of Dutch origin. As pointed out by part of the scholarship, “influenced by domestic environmental pressures as well as the UN-backed concept of sustainable development”, the Dutch National Environmental Policy Plan (NEPP) of 1989 received “considerable attention outside the Netherlands” and, therefore, it became an important model of SD (Jörgens 2003, p. 15). The NEPP represented a technocratic vision of SD, with the main objective to reduce the environmental impact, rather than promote social change. Among the main followers of this model there were the European Commission, with the European Union’s Fifth Environmental Action Programme of 1992 entitled “Towards an Environmentally Sustainable Development” (p. 16), and some European countries such as Portugal and Latvia who adopted national environmental policy plans, both in 1995 (p. 17).

Even part of the literature on “policy diffusion” took into account the phenomenon of the circulation of models, focusing on the global convergence of environmental policies (Tews 2011; Busch and Jörgens 2012). This convergence would be explained precisely by the international diffusion of ideas, approaches, institutions , and instruments in the field of environmental protection . Although the concept of SD has become successfully institutionalized at the international level, especially thanks to the international conferences organized by the United Nations, its effective implementation at the level of the nation state remains the final goal. This is why the vertical circulation should be considered along with the horizontal one: on the occasion of certain points in time, like in 1972 (UNCHE, Stockholm) or 1992 (UNCED, Rio de Janeiro), corresponding to a high level of international (vertical) communication on environmental issues, the speed of (horizontal) diffusion of models was higher than in other periods, thanks also to a direct dissemination of information about these models (Tews 2011, p. 231).

Then, the information among states, with the creation of highly specialised communication networks or transnational communication channels, can play a key role in the horizontal circulation of the SD model. Indeed, some authors point out an interesting example related to the successful circulation of sustainable development strategies in the early nineties, such as “the important role of the International Network of Green Planners, an issue-specific network that was created with the explicit aim of disseminating the idea of green planning” (Busch and Jörgens 2012, p. 238). Moreover, it was also observed that governments generally orient their choices regarding environmental models toward those that have already been put into practice in other countries (Tews et al. 2002, p. 8), considered that “states are more willing to comply with international rules if they can be sure that other states do the same and that free-riding is discouraged” (Busch and Jörgens 2012, p. 241).

Regarding the oblique dimension of the circulation of the SD model, as seen in the previous section, Agenda 21 (1992 § 8.2) considered the international financial organizations such as the World Bank and IMF among the main actors of the necessary change to convey such circulation. Many scholars regard this type of circulation as a form of imposition—for example, an expert scholarship in environmental policy diffusion denominates this type of circulation “coercive policy transfer” or “domination” (Tews 2011, p. 229)—for implementing SD at the national level in developing and transitional countries.

In fact, the eco-conditionality behind this circulation and under the auspices of international organizations consisted in the pressure toward developing countries to prepare and implement SD strategies. And this, despite the Multilateral Financial Institutions (MFIs), namely the World Bank, IMF, and other international funding organizations, were seemingly prohibited to make provisions for non-economic factors, such as environmental protection . Indeed, in the Articles of Agreement of the World Bank, for example, is written: “The Bank and its officers shall not interfere in the political affairs of any member; nor shall they be influenced in their decisions by the political character of the members concerned. Only economic considerations shall be relevant to their decisions, and these considerations shall be weighed impartially to achieve the purpose [of the World Bank]” (World Bank 1989 Art. IV 10).

However, according to some scholars, SD “represents a bundle of interlocking concepts of very broad environmental, socioeconomic, legal and institutional implication.” Organizations such as the World Bank and the IMF “find themselves thrust into the center of a process in which the formal requirement of abstention from “political decision making” might seem to put them at odds with the normative implications of ‘sustainable development’” (Handl 1998, p. 644).

Contrary to the horizontal circulation , based on a voluntary mechanism of imitation, the oblique one depends primarily on asymmetric power relationships, from which it takes its connotation of “imposition” (Jörgens 2003, p. 21). Moreover, the experience with the oblique spread of SD strategies in Eastern Europe and in the developing countries shows that “national capacities are a decisive constraint for the domestic implementation” (Jörgens 2003, p. 26) of the SD model. Furthermore, such imposition is a major restriction of the options available to the developing countries to implement such a model. This prevents a more virtuous circulation of legal model s, which could be more effective or more problem-adequate than those “imposed” (Jörgens 2003, p. 26).

The most important actor in this process of oblique circulation has been the World Bank , that already in 1987 started to support National Environmental Action Plans (NEAPs) in Madagascar, Lesotho, Mauritius, and the Seychelles (Jörgens 2003, p. 22). But NEAPs did not remain confined within the developing countries: even in Central and Eastern Europe and in the New Independent States (NIS) which emerged from the former Soviet Union, the international organizations (besides the World Bank, also the UN Economic Commission for Europe and the OECD) conveyed such plans. Thus, during the nineties, 16 out of 18 Central and Eastern European countries adopted a NAEP, followed by the New Independent States, “mainly due to World Bank support” (Jörgens 2003, p. 23).

Finally, it is legitimate to wonder whether the model conveyed by such international organizations is appropriate for the characteristics of the “conditioned” countries. On the one hand, Agenda 21 clearly foresaw that “[l]aws and regulations suited to country-specific conditions are among the most important instruments for transforming environment and development policies into action” (§ 8.13); on the other hand, as a scholar points out, the World Bank’s “internal working definition of sustainable development appears to be modulated to suit, first and foremost, the economic proprieties of the Bank as a lending institution, without satisfactorily integrating environmental and human rights concerns” (Civic 1998, p. 241). In fact, the World Bank takes into consideration four categories of capital as interchangeable elements in a sustainability policy: human-made capital (machines, factories, buildings, and infrastructure), natural capital (natural resources), human capital (investment in education, health, and nutrition of individuals), and social capital (the institutional and cultural bases for a society to function). This interchangeability between the different capitals can endanger the established concept and therefore the legal model of SD, which can be transplanted in different developing countries as “a simple trade-off of environmental destruction for the sake of economic development ” (Civic 1998, p. 242; see also World Bank 2006; Markandya and Pedroso-Galinato 2009).

5 Conclusions

The analysis of the path traced by the model of SD in its formation and then in its application through the case of national sustainable development strategies has highlighted the role played by the circulation of legal models.

Such circulation, which is the main modality of legal innovation in the various legal systems, showed the positive effect of globalization on environmental protection : a gradual spread to the four corners of the earth of a fundamental legal model with constitutional relevance, such as SD. The merit of this spread is certainly due to the reflections and the efforts made at the international level, which led to the creation of such a model. This model has certainly been an indefinite legal and political creature yet it has shown its effectiveness in producing the paradigm shift from a mere theoretical development to a real one that takes into account the needs of everybody, globally and in a synchronic and diachronic perspective.

Moreover, this contribution wanted to show the strong interconnection and interconnectivity of the different global legal systems, either domestic or international. The fact that countries communicate with each other and share their perceptions and solutions on environmental issues, both in free form as actors of a horizontal circulation between equals, both within appropriate institutions such as the Commission on Sustainable Development and The High-level Political Forum on sustainable development [created at the United Nations Conference on Sustainable Development (Rio+20) to replace the former], represents a factor of evolution for the model of SD, in particular, and for the protection of the environment and human rights , in general.

An accurate doctrine points out that the different national governments in Europe look at each other because they want to avoid the impression of “falling behind the others or because they seek to draw lessons from successful policies developed elsewhere” (Holzinger 2008, p. 230). However, such behaviour shows a widespread trend, not limited to Europe, as seen in the example of the circulation of the national strategy for the sustainable development model from Germany to India . Thus, it represents a positive trend for which environmental leaders are able to pull along the laggards. And this is also true with regard to environmental standard-setting through international harmonisation, even in the absence of legally binding agreements, like in the case of SD. Therefore, even in the vertical circulation the example of the leaders is able “to set the pace in international environmental harmonisation” (Holzinger 2008, p. 230), towards what can be called “a sustainable race to the top”.

Finally, the proposition to introduce a third type of circulation of legal model s with the denomination of “oblique circulation ”, is supported by the “comparative environmental policy” scholarship, adjacent and complementary—and in some respects coincident in research objectives—to that of “comparative environmental law”, to which this contribution takes part.

In fact, this neighbour scholarship offers a tripartite division similar to the one proposed here for the circulation of legal models: harmonization (which corresponds in its legal sense to the vertical circulation ); diffusion (horizontal circulation ); and imposition (oblique circulation ).

Despite the many criticisms already expressed towards this oblique mechanism in action, due to its lack of legitimacy, the difficult coordination of foreign models with the particular contexts of the developing legal systems, and the ambiguous nature of the SD model proposed by the international financial organizations, it seems to be the most fruitful type of circulation in conveying the SD model. Future research may address to what extent and by which modality such circulation could be able to achieve the goals of the SD model in transitional and developing countries .

In conclusion, SD as a legal model has resulted in a global diffusion, but there still remains the question of what it represents: is it a principle, a policy objective, a key ideology of modern environmentalism? Is it an action plan or a component of public policies and private actions? Is it a pleonasm, because any development must be sustainable? Or, on the contrary, is it an oxymoron, given that the development by its nature cannot be sustainable? Or, perhaps, it represents a tertium genus, a model adaptable to different contexts and situations, a rich mine yet to be explored? The answer can only arrive from the experience, and probably, as well-expressed by an expert in the field, “[t]he comparative law analysis of Environmental Law can significantly contribute to an understanding of how law can further sustainable development” (Robinson 1998, p. 249).