Browsing by Author "Luca, Iuliana-Raluca"

Sustainable development has been under intense controversy regarding its meaning and its status under international law. Some scholars claim it is only policy which would only be implemented in the national policies by states and has no binding force, while others go as far as to claim it is a rule of customary international law. The research question is: What is the position of sustainable development under international law? The answer to it is important to raise awareness of the growing impact of sustainable development on law and on international community as a whole, taking into account the context of environmental changes and global social problems affecting states and individuals. It is important to show that sustainable development is already shaping international judicial decisions and that states modify their policies and laws in order to comply with the decisions of courts and tribunals of international law, which further has an impact in shaping future agreements integrating sustainable development. In order to answer the research question, the thesis looks at the normativity of sustainable development, whether it is only policy with no binding force or if it is more than that. Some may include a ‘norm’ in the categories of soft law or hard law with the view to emphasize if it is binding or not. However, does the effect of a norm depend on whether it is hard law or soft law? The thesis envisages sustainable development as an interstitial norm which gains binding force due to its application by international courts and tribunals. There are several views on the relationship between sustainable development and its legal value. The first perspective is that sustainable development is not law , the second is that it should be considered as a branch of law, due to the fact that sustainable development is comprised of a series of principles (inter- and intra-generational equality, sustainable use, equitable utilization of resources) and the last one views it as an interstitial norm , which normativity derives from the use by judges. I will show that it is an interstitial norm and that Hersch Lauterpacht’s understanding of the role of judges in the development of international law is a good lens through which one could look at sustainable development as interstitial norm. For the purpose of answering the research question, the thesis engages in a doctrinal and theoretical legal research, focusing on normative research. The first chapter collects and analyses different bodies of case law where sustainable development was included in the judicial reasoning, ranging from general public international law, international trade and investment law to human rights law. These bodies of law are described and explored in order to view how sustainable development is applied, so that later the second chapter would examine the normativity of sustainable development based on this analysis. In the latter chapter the focus is on assessing the legal force of sustainable development, whether it is binding or not and if it is a principle, only an objective, an interstitial norm or customary law. As will be presented, sustainable development as customary norm will be ruled out, since there is no consistent state practice or opinio juris in the matter. The Thesis will make use of sources, such as treaties, policy papers, international instruments in general, and international legal doctrine. The claim of the present Thesis is that sustainable development is an interstitial norm of international law which gains increasing normativity once applied by international courts and tribunals, as supported by Professor Lowe’s theory of interstitial norms in international law in resonance with Judge Lauterpacht theory on the role of the ICJ in the development of international law. This comes as the demonstration that there are different ways of understanding of international law. The international courts and tribunals mostly deal with sustainable development as a source of interpretation in their legal reasoning, having the quality of principle of interpretation and principle of integration. The present work will begin by explaining the dimensions of sustainable development, so that the reader will have a better understanding of what sustainable development is and will then emerge into its debated status. Apart from the areas of human rights and general public international law, the Thesis will place emphasis on the area of international trade and investment law, since this latter branch appears to marginalise sustainable development or environmental considerations vis a vis investment protection and is the most delicate area in recognizing sustainable development as having importance from a legal perspective and not only policy-wise. If there is a tendency emerging or if it is already present in international trade and investment law to include sustainable development in the legal system, this contours the idea that sustainable development is an interstitial norm. Analyzing these areas of law from a case law perspective as well – not only from the perspective of treaty law or existing policies – one is able to move to the argument that sustainable development is an interstitial norm of international law which bears legal force once applied by courts or tribunals.