The concept of sustainability has been an influential part of the lexicon of environmental law since the late 1980s and has been subject to extensive analysis and debate among academics and regulators. In an important new addition to this scholarship, Klaus Bosselmann's The Principle of Sustainability: Transforming Law and Governance is an interesting interdisciplinary exposition of the historical and philosophical foundations of the concept of sustainability and ecological integrity in the context of law and governance. A law professor at the University of Auckland in New Zealand, Bosselmann has been writing on sustainability and environmental law for many years, and this book perhaps represents the apotheosis of his widely admired scholarship. He proposes a reinterpretation and application of these concepts by different actors on international, regional and national levels in order to enable sustainability to be a truly transformative guiding norm. Bosselmann organizes his discussion into six chapters: Chapter 1 ‘The meaning of sustainability’, Chapter 2 ‘The principle of sustainability’, Chapter 3 ‘Ecological justice’, Chapter 4 ‘Ecological human rights’, Chapter 5 ‘The state as environmental trustee’ and Chapter 6 ‘Governance for sustainability’, with a foreword by the distinguished Judge Christopher Weeramantry of the International Court of Justice.
In Chapter 2, Bosselmann argues that ‘sustainability’ is a legal principle, in contrast to being merely a moral principle or policy goal. 1
K Bosselmann, The Principle of Sustainability: Transforming Law and Governance (Ashgate, Aldershot, Hampshire 2008) 45.
The concept of inter- and intra-generational equity is reflected in section 24 of the Constitution of the Republic of South Africa, 1996. Sustainable development as a principle is included in section 2 of the National Environmental Management Act 108 of 1998, and the Constitutional Court gave effect to the principle in Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province 2007 (6) SA 4 (CC).
Bosselmann (n 1) 50–57.
Ibid 2 and 4.
The discourse on sustainable development, which was often exploited by economic elites and other vested interests to justify merely tinkering with business-as-usual, has gradually made way for the less adulterated concept of sustainability, although it too is not without its definitional and interpretive uncertainties. Sustainable development, according to Bosselmann, is wrongly seen by many as a balancing act between the needs of today's generation and that of posterity. According to him, sustainable development in a historical context ‘calls for development based on ecological sustainability in order to meet the needs of people living today and in the future’. 8
[a]ll good ideas take time and often they are misunderstood. In the case of sustainability, there has been a period of incubation followed by expert debate and eventual popularization through international politics. This has done more bad than good. The concept ‘sustainable development’ lost its core meaning between the 1980s and today. 7
See n 2.
Consequently, Bosselmann argues that ‘if sustainable development would be used merely for integrating and balancing conflicting interests, nothing would be achieved. Without a benchmark, we are left at a guess how environmental, social and economic interests should be balanced’. 11
Bosselmann (n 1) 25.
Ibid 31, 76–77.
In the minority judgment of Fuel Retailers, Justice Sachs applied a similar argument, indicating that economic considerations will come into play only once the environment is safeguarded. 13
See also D Tladi, Sustainable Development in International Law: An Analysis of Key Enviro-Economic Instruments (Pretoria University Law Press, Pretoria 2007) 80; W du Plessis and L Feris, ‘The Dissident Sachs J: A Rebellious Step in the Right Direction?’  South African Journal of Environmental Law and Policy, forthcoming; W du Plessis and L Britz, ‘The Filling Station Saga: Environmental or Economic Concerns?’  Journal of South African Law 263 at 275–76.
Another seminal theme of this book is culture. Bosselmann divorces culture from his definition of the environment, as the environment to him is ‘global by nature and the functions of the Earth's ecological systems are felt everywhere’. 14
Bosselmann (n 1) 4.
See also where Bosselmann indicates that one should not ‘think of sustainable development purely in terms of human needs’ (30).
Another important theme of this book is the anthropocentric-ecological debate, which Bosselmann canvasses in detail in the search for a resolution. 18
Ibid 3 and 13.
In Chapter 3, Bosselmann argues that ecological justice provides a better understanding of the ethical and legal dimensions of sustainable development. 21
Ibid 109. Bosselmann refers to interspecies justice as a benchmark for ecological justice based on human–ecosystem interaction. The question could be asked if he would also be prepared to extend his argument to other species, eg, where rampaging elephants destroy the ecosystems of other living organisms. It is not clear how the sustainability and ecological justice supporters would argue when confronted with such scenarios.
In Chapter 4 Bosselmann deals with ecological human rights in order to assess the influence of the sustainability discourse on human rights as well as on the interpretation of individual freedoms and property and the interrelations between rights and responsibilities. He identifies increasing recognition of a right to a clean and healthy environment, such as in some national constitutions and international legal documents. According to him, 56 constitutions recognize in some way a right to a clean and healthy environment, 97 constitutions place an obligation on governments to protect the environment, and 56 constitutions oblige individuals to act responsibly towards the natural environment. However, Bosselmann queries whether current formulations of such environmental rights are adequate. Certainly, in my opinion they may be effectively unenforceable in poor and impoverished countries. The importance of Bosselmann's argument is, however, that although environmental human rights can be relevant for the protection of the environment, they are limited in their application and focus as they do not always have ecological sustainability as their primary goal. 24
Chapter 5 explores the notion of the state acting as an environmental ‘trustee’. Bosselmann argues that the concept of ‘territorial sovereignty’ needs to be redefined in the light of the common human interest in protecting the global environment. He provides an interesting interpretation of ‘environment’ from the perspective of states and relates these interpretations to the obligations of states. 26
… human rights and the environment are inextricably linked to each other. Without human rights, environmental protection could not effectively be enforced. And vice versa, without the inclusion of the environment, human rights would be in danger of losing their core function, i.e. the protection of human life, well-being and integrity. … [t]he development of all human rights (should demonstrate that) humanity is an integral part of the biosphere, that nature has an intrinsic value and that humanity has obligations towards nature. In short, ecological limitations, together with corollary obligations, should be part of the rights discourse …
Gradual acceptance of moral responsibilities towards nature may lead to a point where we begin to accept the idea of ecological limitations on the exercise of our rights or, more directly, agree to redefinition of the content of certain rights (e.g. property rights). 25
The final significant chapter of The Principle of Sustainability is dedicated to governance for sustainability. Notably, Bosselmann distinguishes between ‘governance for sustainability’ and ‘environmental governance’. 28
No reference, however, is made, for example, to the African Union or other regional bodies.
Bosselmann (n 1) 204.
Quoting the text accompanying the Earth Charter.
In a book of this nature, one inspires the need to differ from what is being said, without necessarily negating it. The points of criticism raised here do not reflect on the validity of the author's argumentation, but arise from a different perspective on these matters. Thus, on page 111 the author states that ‘economic rationality assumes the Greco-Christian position that everything on Earth is for the sole use of human kind’. Although such claims may exist and may have been made by the economic rationalists, this is an interpretation of the Bible I share. Rather, the Bible states not only that one should use the earth's resources, but also places an obligation on humankind to look after the earth, thereby creating a sort of a trusteeship.
IUCN, ‘Shaping a Sustainable Future: The IUCN Programme 2009-2012’  4 IUCN <http://www.iucn.org/about/work/global_programme> (last accessed 10 April 2009).
In general, Klaus Bosselmann's book is deeply thought-provoking and should be read by all scholars and students of environmental law, as the debate on sustainability and its governance is definitely not over. His book makes a valuable contribution to some of the most urgent issues facing humankind, and offers a fresh perspective to the prevailing, often tired debates about sustainable development.
In practical terms, then, if we wish the pursuit of growth to meet human development needs to become sustainable, we must pursue growth that respects the limits of our ecosystems by making sure that growth strategies are not dependent on intensive/inefficient resource use – efficiency is the key to accelerated and shared growth, otherwise resource based constraints and degraded ecosystem services will undermine growth. We must also prioritise developing sufficient governance capacity to ensure effective implementation of policies, laws and programmes. Through these mechanisms we can achieve sustainable shared and accelerated growth. 34
Department of Environmental Affairs and Tourism (South Africa), ‘National Framework for Sustainable Development’  <http://www.deat.gov.za> (last accessed 10 April 2009).
du Plessis, Willemien - Professor, Faculty of Law, North-West University, South Africa