Reflections on Sustainable Development in a Kaleidoscopic World

August 20, 2020 by Camilla Brandfield-Harvey

By Edith Brown Weiss, Francis Cabell Brown Professor of International Law

My reflections[1] begin with an enormous bouquet of thank-you notes. Thank you to the Georgetown Environmental Law Review, especially its editor-in-chief Samuel Ruddy and symposium chair Sara Divett, to the Environmental Law Institute, especially Carl Bruch, and to the Georgetown Environmental Law Forum.

Thank you to all those who have delivered papers, comments or remarks, or chaired sessions.  Three of them are former students and research assistants.  Thanks to my outstanding international and environmental law faculty colleagues at Georgetown Law.

Thank you to everyone who has attended this symposium, especially those from Toronto, Princeton, Boston, and other distant places. Thank you to my talented students.

Thank you to my husband, Chuck, to our son Jed and daughter-in-law Ilana, who are here from Boston, to our daughter Tamara and son-in-law Mike from Minneapolis, who could not join us, and to all my cherished friends and colleagues.

We face a crisis in sustainable development today, with harsh effects both on future generations and on people living today, especially poor and disadvantaged.    Scientists tell us that we have entered a new Epoch, the Anthropocene, in which human actions are the most important influence on the Earth’s environment.  The concept of sustainable development is a statement of our responsibility to the only planet we have.

Sustainable development, however defined, is a public good, both globally and locally.  We all suffer if the Earth roasts, if fresh water is not available, if soils become unproductive, if epidemics spread, and if storms wreak havoc. The effects of climate change are being felt.  Natural disasters have already had heavy costs in the United States.  Data through early October 2019 indicate that this year is the fifth year in a row in which the U.S. has experienced at least ten disaster events costing more than $1 billion each.  The problems of sustainability are inherently long-term but urgently need near-term attention.  They are bigger and more serious than any one country can handle by itself.  To promote the public good, we need to cooperate with each other here and elsewhere.

We are used to assuming that we can leave sustainable development to States (national governments) to address.  In 1992, States came together in Rio de Janeiro proclaiming sustainable development as the guiding mantra and adopted the Rio Declaration on Environment and Development. In 2015, 23 years later, States agreed to 17 Sustainable Development Goals and 169 targets, which they committed to meet by 2030.

But the world today has become much more complex, in part because of advances in cyber technology.  I call this world a kaleidoscopic world. It is characterized by rapid and frequently unpredictable change and a shifting cast of actors in addition to States: robust private sectors, subnational governmental bodies and communities, civil society organizations, ad hoc coalitions and movements, and millions of individuals.   It embodies bottom-up empowerment and efforts at top-down control.  Different groups shake the kaleidoscope at different times and change its patterns. These groups may be States, private sector actors, civil society, or even a multifarious group of actors.  The challenge is to get all of these actors and constituencies to act together toward the common goal of sustainable development – locally, regionally, or globally.

The new kaleidoscopic world has implications for the form that international law and even national and subnational laws take.  While we have traditionally relied mainly on binding international agreements, we are increasingly turning to nonbinding legal instruments (soft law) and to a new layer of international and subnational law – individualized voluntary commitments.  These have emerged in part because new issues emerge rapidly or need urgently to be addressed, which often means that the response must be quick and flexible.   It is likely that individualized voluntary commitments, as reflected in the Paris Agreement on climate change, will more and more take center stage, whether this be by governments, by companies, banks, and others, or by civil society.  We cannot always wait to be sure that everyone is taking the same steps.

Sustainable development is inherently long-term and intergenerational.  But our political and economic structures and incentives favor decision making focused on the short-term.  This needs to change, including in the private sector, as in considering the impacts of climate change.  Future generations are not now represented when we take decisions and they should be.  Giving them a voice will be challenging because we need to identify their interests and to ensure that those claiming to represent their interests are not instead pursuing their own welfare at the expense of the well-being of future generations.  Nonetheless, many important initiatives exist, including legislation that explicitly requires considering them in such sectors as mining, forestry, land use, and pollution control.   Youth understand the need to consider effects on the future.  Litigation in more than twenty countries’ courts addresses this.

Sustainable development also requires attention to the environmental, economic, and social needs of people today. Giving a voice to vulnerable peoples, minorities, disadvantaged people, and indigenous peoples may be more challenging now that decisions are made in an increasingly diverse mix of fora.  On the other hand, the kaleidoscopic world offers opportunities for their voices to be heard, including across national borders.

While the kaleidoscopic world potentially brings great benefits by enabling bottom-up initiatives, it also brings danger to the rule of law.  Governments, the private sector, ad hoc coalitions, groups, and individuals can use cyber technology to spread false information, to rush to legal judgments outside judicial processes, and to undermine trust in the system.  Moreover, governments and others can try to manipulate the kaleidoscope and squash efforts by many players, including companies, multilateral financial institutions, and civil society, to promote sustainable development.

While almost everything we do today has implications for our sustainable use of the planet, there is a growing retreat in some countries to a culture of “me first.”  This is distinct from real nationalism, for nationalism is consistent with concerted efforts to work together in addressing common problems, working for public goods, and managing commons.  Rather, a “me-first’ approach reflects a sense that the world is a zero-sum game in which some win and others lose.  This view is at odds with the global system that de facto exists, and with the needs of a commons, in which cooperative actions can stave off harmful consequences and increase public goods: avoiding armed conflict, addressing problems of drugs and human trafficking, ensuring availability of fresh water, mitigating or adapting to climate change, providing for the needs of refugees and displaced persons, and dealing with the many other problems that we all share.  The me-first view is especially at odds with sustainable development, which is not a zero-sum game but instead requires cooperation and shared measures to avoid harm.

The challenge we face is to get all the many actors to work together to produce the public good of sustainable development.  To this end, shared fundamental norms are crucial, especially in our new, multi-actor, kaleidoscopic world.  Norms underlie our conceptions of how States are expected to behave, how non-State actors are to operate, and indeed how communities and individuals are to act and to respond.  Shared norms make societies work.  Fundamental norms, such as cooperation and avoidance of harm, human dignity, intergenerational equity, and accountability, reflect commonly held values that can bridge a pluralist legal order and provide a sense of order and justice to the potentially anarchic system of a kaleidoscopic world.

Accountability is the norm that links other norms together, because it deals with implementation and compliance with each norm.    In considering sustainability, we must ask the questions: Who is accountable to whom, for what, when, how, and with what consequences?  In many cases, accountability is not a single reckoning as to whether an obligation was met but rather a process of accountability, in which learning takes place, such as in projects of multilateral development banks, other activities of international institutions, and even in international tribunals.

Yet accountability is increasingly difficult in a kaleidoscopic world given the many actors at different levels of responsibility.   Let’s consider, for example, a local event with global implications because it involves the global value chain. In the Rana Plaza textile factory fire in Bangladesh, which killed more than 1,000 people, who should be accountable?    Is it the factory owner, the company constructing or operating the building, the governmental authorities who issued the building permits or who were responsible for overseeing the operations, the buyer of the textiles from the factory, the seller of the merchandise, or even those who buy the clothing? To whom and how should they be accountable? Should international trade laws be brought to bear? These are local, short-term issues in Bangladesh, but they affect the sustainability and equitability of production throughout the global supply chain.

Finally, new technologies challenge sustainability. These include gene drivers, such as CRISPR, artificial intelligence, geoengineering, including solar radiation management, mini-satellites, and others.  On the one hand, they may promise great benefits if properly assessed and used. On the other, they can raise grave risks. Many actors beyond States and national governments will need to be involved in developing and ensuring that they are used responsibly if we are to maintain a stable climate, healthy environment, and other aspects of sustainable development.   For this to happen, we will need shared norms, agreed systems of accountability, and commitments expressed in nonbinding legal instruments and individualized voluntary commitments by a wide array of actors, in addition to possible binding international agreements.

The Anthropocene Epoch puts a great responsibility on all of us.  We all face the same problem of sustainability in caring for the Earth for our children, grandchildren, and future generations. We simply cannot avoid the damage unless we cooperate, and we cannot continue to reap the benefits of living sustainably by going it alone.   If there is a hole in the common ship we share, as there is with climate change, and the hole keeps getting bigger and we do not fix it, the ship sinks with all of us on board. The youth today get it. They are our great hope.  I am confident in them.

[1] Professor Edith Brown Weiss delivered these remarks at the Georgetown Environmental Law Review’s Nov. 19, 2019 symposium entitled “Modernizing International Environmental Law: Honoring the Work of Professor Edith Brown Weiss.”