International Food Governance and Trade in Agriculture
Chapter 5: Status of the principle of sustainable development in international law
Even though sustainable development is accessible to law, this must not necessarily imply that it is also constituted as law in a specific case. With regard to public international law, the sources triad – as reflected in Art. 38(1) of the International Court of Justice (ICJ) Statute – defines whether a norm is part of the body of binding international law (‘hard law’). Accordingly, a legal norm is of binding nature if it is part of an international convention, reflects international custom or is recognized as a general principle of law by civilized nations. Whether the principle of sustainable development has become part of binding international law or not, has been controversially debated among those scholars who affirm some normativity. But much depends upon which normative elements are focused upon. In cases where sustainable development is adopted into treaty law, its adoption comes with a different normative meaning, depending on the wording and the context of the treaty (see section 3.1). Sustainable development is regularly referred to in preambles as an overarching objective to which a treaty will contribute. Examples are provided by the World Trade Organization (WTO) Agreement, the North American Free Trade Agreement (NAFTA) or the Treaty on the European Union.
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