Research Handbook on Fundamental Concepts of Environmental Law
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Research Handbook on Fundamental Concepts of Environmental Law

Edited by Douglas Fisher

The quality and the strength of an environmental legal system is a reflection of the conceptual foundations upon which it is constructed. The Research Handbook on Fundamental Concepts of Environmental Law illuminates key aspects of environmental governance through the lens of their underlying dimensions: for example, the form, structure and language of international, regional and national instruments; the function of norms, objectives and standards; and the relevance of economic analysis and of integrated policy formulation.
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Chapter 18: The judicial development of ecologically sustainable development

Brian J. Preston

Abstract

The concept of ecologically sustainable development (ESD) or sustainable development has been around for at least three decades. The task of instilling ESD and its principles with legal rigour has generally fallen to the judiciary. The judiciaries of the world have, through their decisions, cast some light on the concept of ESD and have answered to varying degrees some of the questions about the concept and the principles of ESD and how and when they should be applied. These judicial decisions have explicated the spare skeleton of ESD, filled the interstices and put flesh on the skeleton. In these ways, judicial decisions are developing a body of jurisprudence on ESD. This chapter sketches some of the ways in which the judiciary, through its decisions, has found, interpreted and applied the concepts of ESD in adjudicating environmental disputes according to law. The first concerns the meaning of the concept and the principles of ESD. Do they set substantive outcomes or only processes, or both? The second concerns the interrelationship between the concepts and principles of ESD, in particular how ESD is to be achieved through application of the principles of ESD. The third concerns the interpretation and explanation of the principles of ESD. The fourth concerns application of the concept and principles of ESD to differing types of disputes. In these ways, this chapter will explain the judicial development of ESD and its principles. These judicial pronouncements are neither complete nor comprehensive. There is still further work that needs to be done to fill in the gaps and bring the whole picture of the meaning of the concept and principles of ESD into full view. Nevertheless, by their decisions so far, courts have contributed to the development and implementation of environmental law.

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