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Agriculture and the Environment in International Law: Towards a New Legal Paradigm?

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Law and Agroecology
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Abstract

Since some decades, the international regulation of environmental issues can be represented in unitary terms, as international environmental law. Conversely, a legal discipline that might be called “international agricultural law” does not exist. Although there are several international rules and even treaties involving agricultural matters, these are disparate and heterogeneous. This fact shows the asymmetrical positions of agriculture and the environment in international law. As a consequence, this chapter focuses less on the environment than it does on agriculture. Moving from international rules and instruments regarding agriculture, it tries to show the existing interaction with environmental law. Finally, it offers some suggestions on a possible agroecological evolution in international law.

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Notes

  1. 1.

    The issue of fragmentation of international law is broadly dealt with by international scholars. One of the most important studies is that of the International Law Commission, 58th session, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission finalized by Martti Koskenniemi, A/CN.4/L.682, 13 April 2006. According to the ILC Report, such regimes “are often identified as ‘special’ in the sense that rules of general international law are assumed to be modified or even excluded in their administration.”

  2. 2.

    Some international regimes, such as trade law or maritime law, present a unity as well as an internal coherence primarily based on a formal common structure. Indeed, international trade law corresponds for the most part to the law of the World Trade Organization, with its many covered agreements, while a similar reasoning is possible for international maritime law and the UN Convention on the Law of the Sea. In other cases, the supposed regime is composed of a patchwork of legally separate and autonomous legal instruments, which, however, share common principles and concepts. This is the case, for instance, in international investment law. In this case, a major unifying function is played by the jurisprudence of arbitral tribunals.

  3. 3.

    “International agricultural law” does not exist as an autonomous legal discipline. We may find very sporadic references to it among legal scholars usually not specifically studying international law (by searching for “international agricultural law” in Google Scholars, we find a handful of quotations, usually of national agrarian law scholars).

  4. 4.

    See, in particular, the WTO Agreement on Agriculture (infra, Sect. 2) and the FAO Treaty on Plant Genetic Resources (infra, Sect. 4).

  5. 5.

    Convention relative aux mesures à prendre contre le phylloxéra vasastrix, Berne, 17 September 1878, signed by 7 European states. Its text may significantly be found in Ruster and Simma (1975), pp. 1565–1570.

  6. 6.

    Sand (2007), p. 33.

  7. 7.

    Text in Ruster and Simma (1975), pp. 1615–1630; cf. Sands and Peel (2012), p. 24. The different approach from the IEL of today is attested to by the distinction made by this Convention between useful and detrimental birds.

  8. 8.

    Sand (2007), p. 33. Sands and Peel (2012), p. 25, also includes conventions to avoid plant and animal diseases in his survey of early environmental instruments. Conversely, Ruster and Simma explicitly excluded the “international legal measures in the area of control and prevention of plant disease” and “promotion of agriculture” from their collection (Introduction to Ruster and Simma 1975, VI).

  9. 9.

    Helmand River Delta Case, Arbitral Awards of 19 August 1872, in Robb (1999).

  10. 10.

    The case is primarily well-known for having stated the prohibition, as a matter of principle in international law, against a state causing injury through fumes to the territory of another, including properties therein located (Trail Smelter Case, Award of Arbitral Tribunal, 11 March 1941, in Robb (1999), pp. 278 et seqq).

  11. 11.

    In its first award (Trail Smelter case, Award of Arbitral Tribunal, 16 April 1938, in Robb 1999, pp. 248 et seqq.), the Tribunal eventually decided to compensate only damage to farming lands (in particular land used for crops) and, to a lesser degree, timber lands (259-70), while the supposed damage to livestock was encompassed within the damage resulting from reduced crop yield or grazing (271). This shows the strict agricultural nature of the affected goods.

  12. 12.

    Indeed, neither “industrial effort should be prevented by exaggerating the interests of the agricultural community,” nor “agricultural community should be oppressed to advance the interest of industry” (Trail Smelter case, 279).

  13. 13.

    Actually, even in the “traditional era” of international environmental protection (cf. Sand 2007, pp. 31–33), there are cases of resource protection without a strict productivist logic: see the 1933 London Convention Relative to the Preservation of Fauna and Flora in their Natural State.

  14. 14.

    Cf. Dryzek (2007), p. 48. Other scholars speak of an “anthropocentric outlook” (Bodansky et al. 2007, p. 3).

  15. 15.

    Two authors interestingly note that some techniques of protection set forth by the 1902 Convention for the Protection of the Birds Useful to Agriculture are still used today (Sands and Peel 2012, p. 24).

  16. 16.

    Indeed, scholars’ reconstruction of the logic of environmental law origins has been construed as a form of management of natural resources, in accordance with an industrialist paradigm (Sand 2007, p. 31). Cf. also Sands and Peel: “a growing awareness that the exploitation of natural resources could not occur on an unlimited basis,” p. 30.

  17. 17.

    FAO Constitution, Art. 1.2 c). Moreover, in its first years of activity, the FAO approved the International Plant Protection Convention and the International Convention on the Protection of New Plant Varieties, both in 1951.

  18. 18.

    Indeed, the first two points set out in the Preamble are “raising levels of nutrition and standards of living of the peoples” and “securing improvements in the efficiency of the production and distribution of all food and agricultural products.” The third point sets out a further objective, strictly connected to that of raising living standards: “bettering the condition of rural populations.” The latter point is a clear synthesis of the two objectives (in the aforesaid sense of consequentiality) from a broader perspective: “thus contributing towards an expanding world economy and ensuring humanity’s freedom from hunger.”

  19. 19.

    It is worth noting that the connection between food production and the aim of raising human standards of living is reflected in the 1948 UN Declarations of Human Rights, in Art. 25.1: “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services” (emphasis added).

  20. 20.

    Marchisio and De Blase (1991), p. 61. It is worth noting that technical assistance was implemented according to a north–south approach, in terms of the supply of technology and commodities from developed to developing countries.

  21. 21.

    More analytically, the issues of land tenure and property regulation were outside the quasinormative competences of the FAO. As to the issue of country public policies in agriculture (in terms of strategies and management), Art. 1. 2 of FAO Constitution (on the power to make recommendations) just refers to the “adoption of improved methods of agricultural production” (Lett. c) and “the improvement of the processing, marketing and distribution of food and agricultural products” (Lett. d).

  22. 22.

    Cf. Marchisio and De Blase (1991), pp. 25–32. The initial ambitious idea of creating a world reserve of excess food to be directed to poor countries was blocked by the opposition of the United States, the main producer of excess food that intended to autonomously manage its distribution as an instrument of political influence (cf. Mahiou and Snyder 2006, pp. 21–22).

  23. 23.

    Their major political claim concerned the achievement of an effective process of economic independence. This position principally resulted in the demand for (full) sovereignty over their natural resources, such claim being in itself highly likely to strongly affect agriculture (from the perspective of the regime of foreign investments in land and farms).

  24. 24.

    Mahiou and Snyder (2006), pp. 25–27. Cf. also Marchisio and De Blase (1991), p. 56.

  25. 25.

    Declaration of the World Food Congress of 18 June 1963. The Congress was organised by the FAO and the UN General Assembly during the UN Freedom from Hunger Campaign. http://legacy.library.ucsf.edu/documentStore/n/d/u/ndu74c00/Sndu74c00.pdf. Accessed 28 Sept 2014.

  26. 26.

    The conference was jointly organized by the UN and the FAO.

  27. 27.

    The International Fund for Agricultural Development (IFAD) is a specialised agency of the UN created in 1976. According to Art. 2 of its agreement, IFAD “shall provide financing primarily for projects and programmes specifically designed to introduce, expand or improve food production systems […], taking into consideration: the need to increase food production in the poorest food deficit countries; the potential for increasing food production in other developing countries; and the importance of improving the nutritional level of the poorest” (emphasis added). The initial logic pursued by IFAD was thus mainly productivist.

  28. 28.

    In particular, developing countries, to which FAO initiatives were mainly addressed, feared that such initiatives could jeopardize the difficult process of economic independence that was at the core of their international claims. See Marchisio and De Blase (1991), pp. 98–102.

  29. 29.

    From a broader ideological viewpoint, the demand to reform land tenure in terms of the wider participation of populations in agricultural activities and management is not really important with respect to the dialectics between conservation and production. In fact, broader access by populations to lands, in particular to uncultivated land, may raise as much concern in the protection of the environment as the maintenance of large landed estates (see, for instance, the broad program of land access and distribution made by Brazil in the 1970s and 1980s in the Amazonian state of Rondonia, which has led to the clearing of most of Rondonia’s rainforest).

  30. 30.

    The initiatives for conserving natural resources in the 1950s and 1960s, such as the 1951 Treaty on Plant Protection, could be connected to the early forms of environmental protection (see supra A), as national resources were internationally protected because of their utility for human economic activities.

  31. 31.

    Cf. the Code on the use of pesticides adopted in 1985: see Marchisio and De Blase (1991), pp. 105–106. See also the Undertaking on Plant Genetic Resources, included in the Resolution 8/83 of 23 November 1983 (infra, Sect. 4).

  32. 32.

    The WTO became operational on the first day of 1995. It administers a body of international agreements that were adopted at Marrakesh on 15 April 1994 (Marrakesh Agreements). Its birth originates in the 8-year negotiation round that was held during the regime of the GATT 1947 (Uruguay Round).

  33. 33.

    According to its Preamble, the WTO Agreement should be applied “in an equitable way among all Members, having regard to non-trade concerns, including food security and the need to protect the environment.”

  34. 34.

    Even if the GATT 1947 had set out a comprehensive regime to liberalize trade, member states, particularly developed countries, strongly derogated from rules of this regime as to agricultural products by maintaining, or even increasing, barriers to trade and export subsidies for food and agricultural products. Reasons for this mainly lay in internal political reasons, namely the will of supporting agricultural classes and the interest in maintaining a sufficient level of internal food production as a guarantee of sovereignty and independence. Cf. Picone and Ligustro (2002), pp. 149–150.

  35. 35.

    Since the beginning of negotiations, the EU has been claiming for the multifunctional character of agriculture (in particular food security and environmental protection, as developed in the EU ACP) to justify some of its trade-restrictive measures (cf. Smith 2000, pp. 707–713).

  36. 36.

    For an analysis on the typology of SPS measures (in accordance with both a classical conservative logic and an ecological one), see infra, Sect. 3), note 68.

  37. 37.

    Indeed, the entire SPS Agreement is a sort of specific development of Art. XX GATT Lett. b), which qualifies as general exceptions those state measures “necessary to protect human, animal or plant life or health.” This claim is confirmed at the end of the Preamble of the SPS Agreement (“Desiring therefore to elaborate rules for the application of the provisions of GATT 1994 which relate to the use of sanitary or phytosanitary measures, in particular the provisions of Article XX(b)”).

  38. 38.

    The importance of this point of conjunction between trade and nontrade concerns is exemplified by Art. 5.7, which is shaped by the precautionary principle, even if the debate concerning the concrete scope of the provision remains open.

  39. 39.

    It is worth noting that particular protection is afforded to GI for wines and spirits (Art. 23).

  40. 40.

    The WB encompasses the International Bank for Reconstruction and Development (IBRD) and the International Development Association (IDA).

  41. 41.

    The first project that the IBRD financed in a developing country, in 1947, concerned precisely the realization of irrigation facilities in Chile (cf. Viterbo 2013, p. 75). As for the IDA, its statutory role is to finance economic development of the least developed countries, where agriculture often represents the first economic activity.

  42. 42.

    As 75 % of the world’s poor live in rural areas, agricultural development is a key source of economic growth. For the IBRD/IDA, agricultural assistance has risen from an average of 9 % of total lending to 12 % from 2010 to 2013. In Sub-Saharan Africa, where agriculture accounts for three-quarters of employment, the WB mobilized $1.4 million, recording a 35 % increase compared to 2010–2012. See WBG Agriculture Profile Results. http://www.worldbank.org/en/results/2013/04/15/agriculture-results-profile. Accessed 4 Oct 2014.

  43. 43.

    The IFC operates on a commercial basis and invests only in for-profit projects, mainly in developing countries.

  44. 44.

    See the latest World Bank Group Agriculture Action Plan. The strategy refers to years 2013–2015. http://www-wds.worldbank.org. Accessed 4 Oct 2014.

  45. 45.

    Viterbo (2013), p. 75. The IFC’s approach to social and environmental sustainability has been codified by creating a comprehensive set of rules that IFC borrowers—primarily corporations and states—have to comply with in order to qualify for project funding: cf. IFC, Performance Standards on Environmental and Social Sustainability, January 1, 2012. On this point, see Solidoro (2013).

  46. 46.

    Cf. Dupuy et al. (2009).

  47. 47.

    Cf. Di Benedetto (2013).

  48. 48.

    This limitation basically operates from an indirect point of view: tribunal decisions do not prohibit regulatory measures per se but award (full) compensation when investment treaty rules are violated, thus discouraging the adoption or implementation of such policies. For instance, two different arbitral awards ordered Mexico to pay compensation for having closed two landfills for hazardous wastes controlled by two foreign companies. The main legal basis for the decision was the violation of the obligation to grant fair and equitable treatment to foreign investors. While these decisions mainly raised environmental concerns, they also negatively impacted on agricultural development (as demonstrated by the massive protests of the local population against landfills): cf. Di Benedetto (2013), pp. 121–123.

  49. 49.

    A representation of such a fragmentation is provided by UN Millennium Development Goals: among its eight objectives, at least four involve agricultural matters—Objective 1 on eradicating extreme poverty and hunger and also Objectives 6 (against diseases), 7 (environmental sustainability), 8 (partnership for development)—but none explicitly deals with agriculture.

  50. 50.

    Cf. Birnie et al. (2009), pp. 4–5. Maljean-Dubois (2010), pp. 12–13, underlines the plurality of meanings embedded in the term “the environment.”

  51. 51.

    Accordingly, the New Oxford Dictionary of English (1998) defines “environment” as “the surroundings or conditions in which a person, animal or plant lives or operates.” Interestingly, the French word “environnement” in the current meaning is ultimately derived from the English word (though the latter was based in turn on the French “environ”): see Le Grand Robert de la Langue Francaise, 10th edn., vol IV.

  52. 52.

    The New Oxford Dictionary of English defines “the environment” as “the natural world, as a whole or in a particular geographical area, especially as affected by human activity.”

  53. 53.

    Cf. Fitzmaurice (2001), pp. 22 et seqq; Birnie et al. (2009), p. 5.

  54. 54.

    Cf. in this sense Birnie et al. (2009), p. 185.

  55. 55.

    See the New Oxford Dictionary of English. In other languages, such as Italian, the core meaning of the corresponding word (It.: agricoltura) is simply that of growing crops (in accordance with the Latin etymology).

  56. 56.

    The biological character of the main object of agricultural activities is unsurprising if one thinks that agriculture is basically aimed at producing food. However, the natural interaction of crops and domestic animals with other living organisms as well as with chemical-physical processes highlights the ecological dimension of agriculture. On this point, which basically explains the discipline of agroecology, see Sects. 4 and 5.

  57. 57.

    On the other hand, a broader meaning of “agriculture” also concerns collateral knowledge and activities that are autonomous in themselves in relation to the environment.

  58. 58.

    Even if the current IEL is far from that model, the industrialist paradigm remains fundamental to understand the evolution of the law and its new foundations from a theoretical viewpoint (cf. Dryzek 2007, p. 48). This is still more important as the influence of IEL on agricultural matters is under scrutiny, for agriculture is essentially an economic activity where productivist aspects obviously remain central.

  59. 59.

    Sand (2007), p. 33; Sands and Peel (2012), pp. 30–32.

  60. 60.

    Birnie et al. (2009), Bodansky et al. (2007), Sands and Peel (2012), Bodansky (2010), Desai (2014), Kiss and Beurier (2010), Kiss and Shelton (2004) and Fitzmaurice et al. (2010).

  61. 61.

    An apparent exception is provided by a collected book on sustainable development (Schrijver and Weiss 2004), where two chapters do concern agricultural issues (namely, agriculture and WTO, and plant genetic resources; for the latter, see infra, Sect. 4). Nevertheless, this should be set on a different level from the other books since the law of sustainable development is distinct from IEL (infra, Sect. 5).

  62. 62.

    Even no section of the chapters explicitly mentions agriculture in their heading. Instead, an environmental handbook has a subsection named “agriculture”: Sands and Peel (2012), p. 550. It significantly occurs under the book’s section dealing with “other hazardous activities,” gathering items that have no structural relationship to each other and thus confirming the marginalisation of the relationship agriculture–environment from the perspective of IEL. This is due, as the authors note, to the fact that “agriculture is not subject to a coordinate regime of legal obligations which apply specific rules at the regional or global level, and which might prepare and implement strategies to use agricultural lands optimally” (Sands and Peel 2012, pp. 550–551).

  63. 63.

    Very significantly, at the beginning of an IEL handbook, the authors indicate “agricultural practices” as one of the six products and behaviors that are “particularly harmful for the environment” (Sands and Peel 2012, p. 5).

  64. 64.

    See, e.g., Doos (1991), p. 44.

  65. 65.

    We have seen that the leading case on state responsibility for transboundary environmental harm—the Trail Smelter case—essentially dealt with the negative effects on farming activities.

  66. 66.

    UN Convention to Combat Desertification in those Countries Experiencing Serious Draught and Desertification, particularly in Africa, adopted on 17 June 1994. Cf. Kiss and Shelton (2004), pp. 445–449.

  67. 67.

    African Convention on Conservation of Nature and Natural Resources. Its Art. 6 requires states to adopt “effective measures to prevent land degradation.” In particular, this article calls for state measures improving soil conservation and promoting sustainable farming and forestry.

  68. 68.

    This double character of agriculture is also reflected in the SPS Agreement. Art. 1 of Annex A, in defining a sanitary or phytosanitary measure, refers to both “risks for agriculture from pests and diseases” and “risks for humans and animals from additives and contaminant.” The latter implies an ecological perspective, whereby agricultural activities may provoke pollution; the former follows a logic similar to that of the early plant protection conventions, whereby legal values are related to agriculture.

  69. 69.

    Cf. Odum (1988), pp. 1–4.

  70. 70.

    An early definition of “ecosystem” may be found in Tansley (1935). Some authors have indicated Forbes (1887), pp. 537–550, as the first ante litteram construction of an ecosystem (cf. Odum 1988, pp. 12, 19). See also the definition of Willis (1997), pp. 268–271. According to Art. 1 of CBD, “‘Ecosystem’ means a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit.”

  71. 71.

    This subsection is essentially based on the collected book Raffaelli and Frid (2010). Yet important references may also be found in some IEL books.

  72. 72.

    Cf. Tarlock (2007). See also Birnie et al. (2009), pp. 585–586.

  73. 73.

    Cf. Preface of Raffaelli and Frid (2010).

  74. 74.

    Raffaelli and Frid (2010).

  75. 75.

    Tarlock (2007), pp. 578–579.

  76. 76.

    Raffaelli and Frid (2010). They underline that ecosystem ecology concerns “the ecosystem as rich in ecological linkages, some of which may be strong but many of which will be individually weak,” while “a reductionist approach […] may fail to correctly understand the system’s topology and dynamics” (Preface of Raffaelli and Frid 2010, vii). For an attempt to bridge the two different perspectives, by enhancing mathematical models also in the holistic approaches, see Fenton and Spencer (2010).

  77. 77.

    Raffaelli and Frid (2010).

  78. 78.

    Cf. also Sands and Peel (2012), p. 13.

  79. 79.

    “There is a clear imperative, therefore, to understand what motivate people, whether they be individuals, communities, organisations or nation states, to manage ecosystems in the way they do, and to incorporate this knowledge into ecosystem models” Raffaelli and Frid (2010), p. 14.

  80. 80.

    Cf. also Tarlock (2007).

  81. 81.

    Significantly, ecologists’ argumentation in favor of this further evolution of ecology relies on international cooperation and even legal instruments, such as the Millennium Ecosystem Assessment promoted by the UN, the Intergovernmental Panel on Climate Change reports, the practice developed within the CBD regime (Raffaelli and Frid (2010), pp. 4–6).

  82. 82.

    The original values of the UNESCO World Heritage Convention: science, conservation, natural beauty and, subsequently, natural sites that are also “examples representing significant on-going ecological and biological processes in the evolution of terrestrial, fresh water, coastal and marine ecosystems and communities of plants and animals” (Operational Guidelines 2002, referred to by Gillespie (2007), p. 77).

  83. 83.

    Cf. Haas (2007), pp. 798–802.

  84. 84.

    Tarlock (2007).

  85. 85.

    Birnie et al. (2009), p. 8.

  86. 86.

    According to Birnie et al. (2009), p. 616, this concept of biodiversity “could become the ‘organizing’ or at least the ‘integrating’ concept for relating relevant existing agreements.”

  87. 87.

    The treaty applies to the area south of the 60° South line of latitude, according to Art. VI.

  88. 88.

    Sands and Peel (2012), pp. 579–580.

  89. 89.

    Protocol on Environmental Protection to the Antarctic Treaty, adopted in Madrid on 4 October 1991.

  90. 90.

    Cf. Birnie et al. (2009), p. 186: the Protocol is the “most comprehensive, and significant example in which an entire continent and the surrounding marine environment have been protected on such an ecosystem basis.”

  91. 91.

    Ramsar Convention on Wetlands of International Importance especially as Waterfowl Habitat, February 1971.

  92. 92.

    Cf. Gillespie (2007), pp. 64–65.

  93. 93.

    Gillespie (2007), p. 73.

  94. 94.

    Raffaelli and Frid (2010).

  95. 95.

    This model in particular was affirmed by the FAO in its 1983 Undertaking on Plant Genetic Resources.

  96. 96.

    Rayfuse (2007), p. 378.

  97. 97.

    Cf. Mgbeoji (2003); Francioni (2006), pp. 9–11.

  98. 98.

    Industrial states—and breeder associations—“were all concerned that the common heritage would pose an unacceptable threat to proprietary rights over plant varieties and their potential improvement by way of biotechnological manipulation,” Francioni (2006), p. 9.

  99. 99.

    The concrete dispositions set out by the 2010 Nagoya Protocol has confirmed the centrality of state sovereignty and this access mechanism (Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, adopted at the tenth meeting of the CBD Conference of the Parties on 29 October 2010, in Nagoya).

  100. 100.

    According to Art. 2, “‘Country of origin of genetic resources’ means the country which possesses those genetic resources in in-situ conditions,” that is, “conditions where genetic resources exist within ecosystems and natural habitats, and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties.”

  101. 101.

    Santilli (2012), pp. 115–117.

  102. 102.

    Santilli (2012), p. 115. The author refers to important scientific studies from the nineteenth century to today that testify to such difficulties in determining centers of origins and centers of diversity.

  103. 103.

    Santilli (2012), p. 117.

  104. 104.

    International Treaty on Plant Genetic Resources for Food and Agriculture, Rome, 3 November 2001.

  105. 105.

    The FAO Treaty would tend to qualify Plant Genetic Resources as a “common concern of humankind”: Footer (2004), pp. 433–466.

  106. 106.

    They are 35 food crops and 29 forage crops. However, very important crops are excluded by the list, such as soybean, tomatoes, coffee, cacao (see Santilli 2012, p. 123).

  107. 107.

    Art. 10.1, which uses the same terms as Art. 15.1 of CBD.

  108. 108.

    It is worth noting that the Nagoya Protocol in its Preamble recognizes “the special nature of agricultural biodiversity, its distinctive features and problems needing distinctive solutions.”

  109. 109.

    Agroecology is specifically dealt with in several chapters of this book (see in particular Caporali), and the relationship between agroecology and law is more broadly investigated in some of them.

  110. 110.

    For a pioneer study on agroecology and law, cf. Monteduro (2013).

  111. 111.

    See, for instance, Boyle and Freestone (1999), pp. 16–18. This uncertainty concerns both the way treaties qualify sustainable development and the recognition of its status in general international law. Cf. Barstow Magraw and Hawke (2007), pp. 622–626.

  112. 112.

    In its Separate Opinion of the ICJ Judgment in Gabcikovo-Nagymaros case, Judge Weeramantry claims that sustainable development would be “a principle with normative value.” The thesis of the legal principle is also espoused by Voigt, who speaks of sustainable development as a general principle of law. The view of Lowe (1999) is more complex: he substantially qualifies sustainable development as a policy goal, thus incapable of assuming a normative character as a custom of international law; however, it would play the role of a “modifying” or “interstitial” norm, influencing the application (in primis by judges) of primary rules.

  113. 113.

    These three “pillars” of sustainable development are commonly recognised by the UN Declarations since the mid-1990s (cf. Copenhagen Declaration on Social Development, 19 April 1995; UN Millennium Declaration, GA Res. 55/2, 8 September 2000; World Summit Outcome, GA Res. 60/1, 24 October 2005; Declaration on the follow-up of Millennium Development Goals, GA Res. 65/1, 19 October 2010). At its origin, the two conceptual poles of sustainable development were simply economic development and environmental protection, and this perception has continued until the end of the past century (cf. Lowe 1999 and the famous 1997 Gabcikovo-Nagymaros Judgment of the ICJ, para. 141).

  114. 114.

    Among international law scholars, for instance, the book of Voigt (2010), precisely interprets sustainable development as a “principle of integration” (pp. 145–186) and thus employs the principle to cope with the question of reconciling climate and trade law. Cf. also Cordonnier Segger and Khalfan (2004), pp. 50–53 (see infra, note 123). The same approach is also implied in the famous ICJ Judgment in the Gabcikovo-Nagymaros case: “This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development” (para. 141). Even Lowe (1999), p. 26, though exposing a more articulated theory (cf. supra note 111), says that “[t]he idea that development and environmental protection must be reconciled is clearly central to the concept.”

  115. 115.

    This legal force (or weight, if referred to principles according to the Dworkinian theory) would depend on each regime, or legal order concretely involved, so explaining why similar questions might lead to different results even though all are framed under sustainable development.

  116. 116.

    This point is confirmed by Koskenniemi (2009), pp. 7–19: “notions such as ‘sustainable development’ […] single out fragile compromises in areas where the struggle between opposing groups of experts and their preferences has not (yet) been taken to the end.”

  117. 117.

    For instance, according to Cordonier Segger and Khalfan (2004), p. 50, sustainable development entails “a balance between three intersecting systems of international law,” i.e. international social, economic and environmental law. Therefore, “International sustainable development law is found at the intersection” of these three fields of international law (p. 51). Sustainable development should play a role “to reconcile economic, environmental and social treaties and regimes in case of conflicts between norms” (p. 53).

  118. 118.

    In this way, the concept of integration evolves, being viewed “as an ontological link operating in the construction of agriculture as a human activity system” (see Caporali in this volume). Accordingly, the concept of sustainability, if holistically conceived, would likewise rather assume a shift in its meaning.

  119. 119.

    Raffaelli and Frid (2010), p. 14.

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Di Benedetto, S. (2015). Agriculture and the Environment in International Law: Towards a New Legal Paradigm?. In: Monteduro, M., Buongiorno, P., Di Benedetto, S., Isoni, A. (eds) Law and Agroecology. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-46617-9_6

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