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The Rio Declaration on Environment and Development - A Commentary edited by Viñuales, Jorge E (1st February 2015)

2 The Philosophy of the Rio Declaration

Pierre-Marie Dupuy

From: The Rio Declaration on Environment and Development: A Commentary

Edited By: Jorge E. Viñuales

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 24 March 2019

Subject(s):
Sustainable development

(p. 65) 2.  The Philosophy of the Rio Declaration

I)  Introduction

The Rio Declaration on Environment and Development was adopted on 13 June 1992. And yet, we feel the need to write its commentary, article by article, more than twenty years later, while, in the meantime, two other conferences have already been convened, on the tenth and twentieth anniversary of the Rio Conference. It thereby demonstrates that the agreed text has since then remained, if not without a future, at least without an equivalent. The Rio Declaration is both a text of reference and the result of an exceptional event. Contrary to what happened during the Stockholm Conference, devoted twenty years earlier to the same topic, the United Nations managed in 1992 to bring together the entirety of member State delegations, from the East as well as from the West, from the South and from the North, to reaffirm that ‘we have only one Earth’ and that our actions put it into danger.

The Stockholm Declaration had already constituted an act, political as well as legal, of a singular importance; but it had never been adopted by all member States and was the illustration of fundamentally different approaches between developed and developing States regarding the challenges of environmental protection. As for the Rio Conference, it is the first and undoubtedly remains until now the only conference that can be called, as it was, the ‘Earth Summit’. As in Stockholm, the declaration that was adopted at the end of the conference amounts to a wake-up call as much as it is a catalogue of collective commitments. Its primary objective, as corroborated by its title, is to reconcile the visions of affluent countries to that of populations concerned with their own development. It is however regrettable that the key concept of ‘sustainable development’ was not given a proper definition in the Rio Declaration, hence echoing the persistent divergences between the poor and the rich. These differences of opinion are undoubtedly one of the reasons why the text adopted in 1992 failed to affirm the promotion of a healthy environment as a (p. 66) fundamental human right, despite the fact that the key elements of the principle had already been provided for in Principle 1 of the Stockholm Declaration.1

The underlying philosophy of the Rio Declaration is, nevertheless, hindered by antagonistic trends. As with other texts negotiated globally, it would be relatively artificial to look for a complete and coherent unity in the inspiration underlying the document. Yet, there is little doubt that the projects elaborated within the framework of the United Nations keep the trace of the ideas debated at the time about the comparatively new need to unite to ensure that the planet, threatened by the anarchy of human actions, remains inhabitable. Nevertheless, the text is the result of negotiations and compromises between national delegations: the cult of national sovereignty and the common adherence to the imperative of economic growth contradict in part the cult of collective enterprise found in the global cooperation framework needed to save an endangered Earth. And yet, this imperfect text exemplifies how perceptions have evolved on an Earth that we find ourselves constrained to share and whose degradation incites us to introduce a collective duty of solidarity.

II)  A Fresh Look at the Earth

The Rio Declaration is animated by a tension between the concern to re-establish the ecological balance and the desire to avoid compromising economic development. It could be simplistic to summarize this tension as a divergence of opinions on the basis of a North/South divide. There are, admittedly, differences between their approaches to environmental issues: the alarm regarding the need to protect the environment is considerably stronger in industrialized countries, which have long been confronted by environmental degradation, given their comparatively early industrial revolution. Nevertheless, none of the States attending the Rio Conference was ready to sacrifice, even partially, economic growth to ecological restoration. In any case, the Earth, recognized as wounded, is identified by the Declaration as ‘the Earth, our home’; but this tender solicitude does not diminish the conviction that man remains the measure of all things, to quote the famous expression of the antique sophist Protagoras: the protection of Nature remains subordinated to the usage that humanity will make of its resources.

1.  ‘The Earth, our home’

In Hymn XII of the Atharva-Veda, the sacred text of Hinduism and jewel of the Vedic culture, invocations such as this one are found:

Thy snowy mountain heights, and thy forests, O earth, shall be kind to us!… Upon the firm, broad earth, the all-begetting mother of the plants, that is supported by (divine) law, upon her, propitious and kind, may we ever pass-our lives!2

Admittedly, there is no equivalent to this chant of the Earth in the declaration adopted at Rio, whereas numerous similar invocations can be found in other cultures. The lyricism of the Stockholm Preamble and its prophetic resonance has actually disappeared. In the Rio Declaration man is only ‘both creature and moulder of his environment’. There is (p. 67) no emphasis on the key and formidable powers he has on the future of the Planet either. Yet, one should not forget that the Rio Preamble, ‘seeking to build upon’ the Stockholm Preamble, refers back to it from its very first words.

In this respect, the reference, in the last paragraph of the Preamble, to the fact that the Earth is ‘our home’ is a welcome and encouraging statement. The expression is rich in meaning. Strikingly, the text prefers the term of ‘home’ to the notion, at the time already almost traditional and associated with the concept of humanity, of ‘common heritage’. But such a change does not impoverish the overall philosophy of the Declaration. Shared by all, the ‘home’ is indeed understood as a heritage shared by all generations, past, present, and future, of the community of human beings. In addition, the term ‘home’ has a connotation that is less legal than that of ‘heritage’, and is also more intimist, family-oriented, and community-based. All members of the universal brotherhood are hosted, albeit more and more cramped given the galloping demographic growth, on the same earth. This implies a constant reorganization of the restricted space, a place of residence and a reservoir of resources for mankind, condemned to a concerted management of its organized survival. If we consider, as we should, that the evolutive interpretation of the Declaration and its Preamble is necessary for its permanent adaptation to the inspiration of collective action, the wealth of the expression ‘our home’ is then to be underlined.

But also, and most importantly, the word ‘home’ introduces an affective dimension; it refers, yet in a manner more implicit than in 1972, to what can be considered as an inversion of the relationship between humanity and its womb. In the ancestral text of Antharva-Veda mentioned above, the Vedic tradition impressed by its serene attachment to the permanence of the mother Earth. A similar feeling could also be found in the homeric hymn written as early as the sixth century BC that celebrates the ‘well-founded Earth, mother of all, eldest of all beings (who) feeds all creatures that are in the world’.3 Traditionally, and since the dawn of time, the cultures of the world have perceived the nourishing earth as a source of inexhaustible wealth and fertility. On the opposite, in the latter third of the twentieth century and at the beginning of the following millennium, men sense, at least occasionally, that their mother has truly aged; the advanced age of the Earth mother weighs upon it even more so that its resources, too long thought inexhaustible, have been exploited in an unrestrained manner.

From then on a new fear of global scarcity appears, with the disappearance of fish in the seas, gold in mines, oil in deposits that are being avidly sucked up, breathable air above sprawling cities, and also of the entire biodiversity as exemplified by the adoption of the convention concerned with its protection at the same place and time (1992) as the Declaration. Man starts to be spasmodically aware, beyond the apocalyptic revelation of the annihilating power of the military atom, that unrestrained freedom can lead to the sterilization of his own living space. Beyond their prudent ‘instructions’, governmental delegations themselves, at least during the brief euphoria of a conference to which they were all invited, realized at Rio that their disorganized actions were threatening to definitely silence the Spring.4

Reading the addition, after all relatively inspired, to the Preamble of the Declaration, we would almost hope that by designating the Earth as ‘our home’, the diplomats gathered (p. 68) at Rio wanted to revive the sacralization of the Earth, at least from a rhetorical perspective. It is this same sacralization that had swamped ancient civilizations, before the disenchantment of the world with technical culture and a thirst for progress. Had a number of philosophers, such as those part of the ‘Deep Ecology’ movement,5 or Michel Serres in France, not already called, well before the adoption of the Rio Declaration, for a renewed sacralization of the now dependent Earth mother?

Reading Principle 7, one might almost think that its call to the international community derives from such an inspiration. Inter-State cooperation is worded as an obligation to ‘conserve, protect and restore the health and integrity of the Earth’s ecosystem’. The reference to health is an encouraging perspective to consider not only Nature as a person, but also, more largely and following an intentionally holistic vision (as it speaks of ‘restoring its integrity’), Earth itself, envisaged within the framework of the ecosystem made of its interdependent elements. It would however be wrong to think that the Declaration goes that far.

2.  The enduring relevance of Protagoras

It would be vain to look in the text adopted at Rio for an invitation to the conclusion of the ‘natural contract’ called for by Michel Serres,6 Arne Naess,7 or Klaus Meyer-Abich,8 who wanted to elevate Nature or its elements (such as trees for instance) to the level of true subjects of law, including by giving them legal standing.

On the contrary, the deliberate anthropocentric inspiration of the Declaration and the retained subordination of Nature to man is present from the very first principle. It opens the normative section of the Declaration by providing that ‘human beings are at the centre of concerns for sustainable development’. Such an assertion undoubtedly only makes space for a conceptualization of the respect for Nature within a narrow instrumental framework turned towards the pre-eminence of the human being over nature—and this despite the fact that Darwin’s evolutionism had revealed, since the publication of The Origin of Species in 1859, that man is only an element of a natural environment of which he is an integral part.

No Copernican revolution here. Man remains at the centre of the system. He remains the master; he remains conceptualized almost irrespective of the dependent state in which he is nevertheless put towards his own environment. Reading Principle 1 of the Declaration, we tend to think that ecological imbalances remain limited, without questioning the famous assertion of Protagoras, four centuries BC, according to which ‘Man is the measure of all things’. Admittedly, the three monotheisms have not fundamentally questioned the pertinence of the expression, which is today contested, but at least not by the Rio Declaration. Indeed, according to the text, there is no environmental protection without development, as understood by human beings.

The upholding of the primacy of the duality between man and Nature is for that matter illustrated in the notion of ‘sustainable development’. Even if the concept is not defined (p. 69) by the Declaration, its Principle 4 provides without ambiguity that ‘[i]n order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it’. There is no better way of saying that Nature and its protection do not exist for themselves. On the contrary, it would not be an overstatement to conclude that, given such a principle, the chance for environmental protection lies for the promoters of the Declaration in its economic dimension, in the sense that damage to the environment creates costs jeopardizing the cost-effectiveness of the activities responsible for the harm. If this is really the case, the limits of the environmentalist perspective of the text are clear. Its relatively traditional concept of progress connects it more to the nineteenth century than to the alarmist concerns of the ‘Club of Rome’ towards growth, although barely more than a decade old at the time of the meeting of the ‘Earth Summit’.9 At best, it is the idea that progress cannot be achieved ‘at all cost’ that can be identified in the attempt to reconcile development and the environment. As a result, Principle 8 seeks to eliminate ‘unsustainable patterns of production and consumption’.

Such an assertion is probably important enough to justify the authority that we still grant the Declaration twenty years after its adoption—and even more so considering that it advocates a universal duty of solidarity on this basis.

III)  A Duty of Collective Solidarity

The Declaration has remained up to date as none of its key concepts have lost relevance until now: if not, it is the opposite, given that, since its adoption, the state of the terrestrial environment has generally worsened. As a result, the call for a ‘global partnership’—based on solidarity between all the elements of the human community in the face of this collective threat—supposedly relies today, as before, on a shared feeling of collective responsibility that focuses more on the future than on the past. It also encourages the development of a normative framework with a universal aim—although, admittedly, the key challenge today lies more in the implementation of existing norms rather than in their formulation.

1.  A call for collective responsibility

While Nature had originally been the source of so much wealth for man, it gradually became its victim. As a result, the reversal of the relationship between man and Nature and the ever-growing threats of the destruction of Nature encourage humanity to engage in collective action.

The reading of a text elaborated during the penultimate decade of the last century and expressing a new sentiment of responsibility provoked by a certain ‘heuristic of fear’ might naturally lead us to find its inspiration in one widely read book of the time, ‘Das Prinzip Verantwortung’, ‘The Imperative of Responsibility’10 of Hans Jonas, published in German in 1979 and soon after translated into English and other languages. While its influence on the Declaration is highly likely, it also knows some limits, paralleling the criticism levelled against the author regarding his deliberately anti-technical tendencies and critical stance (p. 70) towards the rationalism of the Enlightenment.11 Here again, even if the philosophy of the Declaration remains implicit, if not unknown by a number of its authors, the ‘return to Kant’12 movement might be more at ease with explaining why the Declaration encourages an increase in global legislation relative to the protection of the environment.

Given that modern technology now allows man to wipe out the planet, Jonas wonders why ‘humanity should exist’. He discredits traditional morals, too centred on instantaneousness. We are henceforth responsible for the future. The mission of humanity is thus to safeguard future generations even more than the present ones. Jonas considers that it has become urgent to overcome the abyss originally formulated by David Hume between what is and what ought to be. It is today that we should commit to what is, as it is on this reality that weighs a prophecy of apocalypse. At the opposite of Descartes’ project, which considered that man is the ‘master and owner of nature’, we should now become the ‘servants and hostages’ of nature; a silent nature but, taken hostage and at the mercy of man, even more so weakened. More than 20 years later, the dramatic warming of the planet, considerably more important than originally predicted by the scientists, and the rapid melting of the Arctic ice cap at the source of new territorial greed, have not at all disqualified the gloomy visions of the heir of Heidegger. In his wake, but in a more positive manner, Paul Ricoeur underlined how these new ethics of the future call for collective responsibility in the form of a ‘mission to be fulfilled’ rather than as a mistake that requires reparation of its consequences:13 responsibility, yes, but turned towards the future.

We should therefore note that one of the most fundamental provisions of the Stockholm Declaration, enunciated in Principle 21, appears earlier in the text of the Rio Declaration, at Principle 2:

States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and development policies and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

Nevertheless, this principle, which the International Court of Justice has since reaffirmed several times as part of positive international law, reflects for the most part a classical conception of responsibility. Indeed, it formulates a ‘primary obligation’ which, if disregarded, would engage responsibility for failure to meet the duty of due diligence. In any case, it is its breadth that opens the principle to a dynamic conception of prevention of harm, widening up to a precautionary approach often inspired by the work of Hans Jonas itself, and found explicitly in the wording of Principle 15 of the Rio Declaration, according to which ‘[w]here there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation’.

The criticisms often levelled against the thinking of Jonas by ‘egalitarian’ authors claiming to concur with the contractualist logic of John Rawls appear here to be only very (p. 71) partially warranted.14 In practice, and as the evolution of comparative positive law systems relative to the environment has actually demonstrated, we always legislate for the future and not only for the present, therefore not only for the contemporaries but also for the unborn subjects. There is no conceptual obstacle, unless we limit ourselves with a narrow concept of the law simplified as a contract between equals, to legislating for the protection of future generations. This is even more so if we consider that the revocability of international conventions and their conditions of periodic revision could suffice to ensure their necessary adaptation to the passing of time.15

2.  Return to Kant

On the other hand, the Declaration seems to depart from the possibly too radical ideas of Hans Jonas on responsibility by introducing two determining elements—implying an equitable division of duties and providing for differential treatment according to economic capabilities. Once more, Principle 7 is here enlightening. The provision ends on the statement that: ‘the developed countries acknowledge the responsibility that they bear in the international pursuit to sustainable development in view of the pressures their societies place on the global environment’, whereas it started by affirming that ‘States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem’.

This idea of a global partnership remains relatively blurry; however, it clearly establishes the framework of reciprocal solidarity within which cooperation between the ‘North’ and the ‘South’ should operate. Notwithstanding their developmental differences, States are all interested in safeguarding their common planetary residence. Therefore, far from breaking away from the ideas of the Aufklärung, the Declaration is inscribed in the rationalist tradition that had already inspired the drafting of the Charter of the United Nations, that is, a tradition recognizing the necessity of having a universal constitution to move beyond the state of nature, even though, and contrary to the perspective taken by some contemporary currents, it would be wrong to take the term ‘constitution’ literally by understanding it as a formal legal instrument. In any case, this idea can easily be transposed from concerns over the establishment of political peace to the fight against pollution; and this in particular given that Principle 25 of the Declaration clearly tells us that ‘Peace, development and environmental protection are interdependent and indivisible’.

The reference to humanity, also present in the last paragraph of the Declaration and envisaged by the author of Perpetual Peace: A Philosophical Sketch,16 is what allows man to think of universality imposed by moral law. Humanity, in addition to being trans-temporal by extending to future generations, is also trans-State given its cosmopolitan dimension; it creates a requirement of universality applicable not only to moral law but also to its formalization in the form of law. In the aforementioned Sketch, Kant was already blackening the attitude of occidental metropolises for remaining considerably below the (p. 72) requirements posed by cosmopolitan law and involving ‘the right to a common ownership of the surface of the Earth’.

As a result, the Declaration assigns different objectives, more or less general, to the participants in this global partnership: improvement of scientific cooperation relative to the environment (Principle 9); promotion of ‘a supportive and open international economic system that would lead to economic growth in all countries’ (Principle 12); cooperation to prevent the relocation and transfers towards other States of activities or substances likely to cause ‘severe environmental degradation’ (Principle 14); international notification in cases of natural catastrophes (Principle 18); or of activities likely to cause transboundary damages (Principle 19). In addition, it is expected that these objectives are carried out in ‘a spirit of partnership’ (Principle 27).

Contrary to the Stockholm Declaration, the Rio Declaration makes only a shy reference to future generations in Principle 3, devoted to the right to development. We might however consider that the normative programme adopted in 1992, although in principle turned towards the future, is primarily defined by reference to the truly Kantian idea that provides that we need a law common to all the peoples of the Earth to coordinate efforts in order to avoid that the pursuit of economic development transforms into an ecological catastrophe. The adoption, simultaneous to that of the Declaration, of the Framework Convention on Climate Change and of the Convention on Biological Diversity corroborates the existence of a common universal support for this powerful norm to save Nature by leaving the ‘state of nature’, ie the unorganized coexistence of rival sovereignties. The joint acceptance of Agenda 21, aiming in particular to include regional authorities and all the other stakeholders of economic development in the promotion of sustainable development, also underlines the cosmopolitan dimension of the normative encouragement addressed by the 173 heads of States and governments to the totality of the peoples of the Earth, under the watchful eye of the representatives of international civil society.

IV)  Conclusion

In conclusion, if we accept to step back and consider the temporal dimension of the event that was the Earth Summit, we can observe that, for the first time in the history of humanity, and beyond the movement already initiated in 1972 at Stockholm, all the representatives of those who inhabit the globe gathered together to affirm their common will to save their planet. At the cosmic scale, this planet is only one amongst thousands or billions of others. While it is not possible to confirm our monopoly, this planet is however characterized not only by the existence of life but also by the existence, perhaps progressive, of conscience. To speak like Pierre Teilhard de Chardin, as he was at the beginning of the first quarter of the last century, a ‘noosphere’ appears as a result, made of the growing interconnection of individual consciences, closely connected to the terrestrial biosphere.17

(p. 73) This leads us to wonder whether, despite its shortcomings and imperfections, the Rio Declaration does not constitute, on the scale of evolution, the most accomplished—up to now—affirmation of the growing awareness that humanity is just a passenger on an Earth in distress.

Any reference to Evolution however designates the implacable arrow of time. Let us nurture the hope that this catalogue of resolutions, while clumsy and perhaps relatively empty promises, will not prove to have been formulated too late.(p. 74)

Footnotes:

Emeritus professor of international law at the University Panthéon-Assas (Paris 2) and at the Graduate Institute of International and Development Studies, Geneva.

‘Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being.’

See Ralph Griffith, The Hymns of the Atharvaveda, 1895–6, full text on the Internet. <http://www.sacred-texts.com/hin/av.htm>.

Homer, Hymn XXX, ‘To Earth the Mother of All’, translation by H.G. Evelyn-White, in the Loeb Classical Library (New York, 1914), 456.

Carson, R., Silent Spring (Houghton Mifflin Harcourt 1962).

See Nash, R. F., The Rights of Nature: A History of Environmental Ethics (Wisconsin University Press 1989); Deveall, B. and Sessions, G., Deep Ecology: Living as if Nature Mattered (Gibbs Smith 1985).

Serres, M., Le contrat naturel (Flammarion 1987).

Naess, A., ‘The Shallow and the Deep, Long-Range Ecology Movement: A Summary’ (1976) Inquiry, n°16. See also Ost, F., La nature hors la loi (La Découverte 1995), 159.

Meyer Abich, K., Aufstand für die Natur (Hanser 1990).

Meadows, D. H. et al, The Limits to Growth (A Report of the Club of Rome 1972).

10  Jonas, H., The Imperative of Responsibility: In Search of Ethics for the Technical Age (University of Chicago Press 1979).

11  See in particular Sève, L., Pour une critique de la raison bioéthique (Odile Jacob 1997).

12  See Renaut, A., Kant aujourd’hui (Flammarion 1990).

13  Ricoeur, P., ‘La responsabilité et la fragilité de la vie’ (1991) 5 Le Messager européen 203, at 203ff, referred to by Ost, La nature hors la loi, 285. See also Ricoeur, P., Soi-même comme un autre (Seuil 1990), seventh and eighth studies.

14  See in particular Barry, B., ‘Justice between Generations’, in Hacker, P. M. S. and Raz, J. (eds), Law, Morality and Society, Essays in Honour of H.L.A. Hart (Clarendon Press 1979), 272. See also Ost, La nature hors la loi, at 288ff.

15  See Brown Weiss, E., In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity (Transnational Publishers 1988).

16  See Kant, I., Political Writings (Cambridge University Press 1991), 93–130.

17  See, among others, his Hymn for the Universe, published in 1965; or The Human Phenomenon, in a new translation, Appleton-Weber, S. (trans), (Sussex Academic Press 2003). On P. Teilhard de Chardin, see King, U., Spirit of Fire, The Life and Vision of Teilhard (Orbis Books 1996).