Understanding the relationship between the rule of law and sustainable development

5.3. Exploring the Formal, Procedural, and Substantive Dimensions

An effective approach to comprehending the relationship between the rule of law and sustainable development is to examine the distinct aspects of the rule of law, namely its formal, procedural, and substantive components. The formal aspect of the rule of law offers a stable and predictable legal structure for enterprises and individuals, which is crucial for achieving sustainable economic growth. An effective legal system can have a beneficial influence on the economy by offering transparency, assurance, and reliability in commercial dealings. Joseph Raz, `The Rule of Law and its Virtue' (1977) 93(Aprl) Law Quarterly Review 195, doi:10.3316/agispt.19771103. It can also ensure secure land titles and balance investment incentives, increasing confidence in investment and business. For the rule of law to be effective, the laws must be easily accessible, predictable, and generalised, commonly referred to as legality. Lon L Fuller, The Morality of Law (Yale UP 1964). Some authors illustrate this perspective by stating that the rule of law entails `the rule by laws,' meaning that individuals should comply with and be governed by the law. Raz (n 71). This interpretation emphasises the fundamental nature of the rule of law.

In addition to the formal approach, the procedural approach to the rule of law mandates the inclusion of dispute-resolution mechanisms that independent and unbiased judges oversee. Stephane Beaulac, `The Rule of Law in International Law Today' in G Palombella and N Walker (eds), Relocating the Rule of Law (Hart Publishing 2009) 197. This requirement supplements the previous emphasis on accessibility, predictability, publicity, and generality of laws. Additionally, people must have access to legal representation, be present during their hearing, cross-examine witnesses, and receive an explanation of the tribunal's decision. Raz (n 71). These principles are essential for ensuring that no one should have any penalty, stigma, or severe loss imposed upon them by the government without proper procedures. A Wallace Tashima, `The War on Terror and the Rule of Law' (2008) 15(1) Asian American Law Journal 245, doi:10.15779/Z38MK2H. In a society where the procedural dimension of the rule of law is upheld, everyone is entitled to a fair and impartial hearing, regardless of their social status, political affiliation, or economic power. By ensuring that disputes are resolved efficiently and effectively, the rule of law can create a favourable environment for sustainable development.

While some jurists follow Raz's view that the rule of law is purely procedural, as the rule of law principles primarily focus on the processes and methods by which the law is created and implemented, Joseph Raz, `The Law's Own Virtue' (2019) 39(1) Oxford Journal of Legal Studies 1, doi:10.1093/ojls/gqy041. others argue for a substantive dimension. The procedural aspects of the Rule of Law can generate momentum towards substantive ideals such as justice and liberty. Bingham (n 25). One primary differentiation between formal and substantive conceptions of the rule of law relates to the impact that adherence to the rule of law has on the substance or content of legal rules. Put differently, the substantive aspect of the rule of law broadens the definition to encompass more extensive objectives, such as human rights, liberty, and justice. In South Africa, for instance, the rule of law has both procedural and substantive elements that must be understood in the context of the country's post-apartheid constitutional system. The new constitution emphasises the protection of human rights and the advancement of freedom and democracy, in contrast to the past apartheid legal order, which implemented a racist ideology through law. The key difference is that the new constitution guarantees rights and liberties and rejects the discriminatory ideology of the past. Louis J Kotze, `Sustainable Development and Rule of Law for Nature: : A Constitutional Reading' in C Voigt (ed), Rule of Law for Nature: New Dimensions and Ideas in Environmental Law (CUP 2013) 130. However, it is essential to note that the formal and procedural aspects of the rule of law are critical for ensuring that the legal system operates effectively, fairly, and transparently. Without these basic prerequisites, the growth and development of societies can be stunted. Pursuing the seventeen Sustainable

Development Goals will bring fresh aspects to conventional legal formalism. These goals prioritise a rule of law that effectively upholds human rights, territorial community integrity, social inclusion, specific public goods, and public values. Notably, Goal 16 holds great significance in development as it aims to foster peaceful and inclusive societies, ensure universal access to justice, and establish accountable and efficient institutions at all levels. In other words, to achieve sustainable development comprehensively, it is important to tackle the substantive aspect of the rule of law. ibid. The substantive dimension of the rule of law can ensure that laws are designed to promote sustainable development and are enforced consistently and fairly. This expansion towards more substantive theories has rendered the notion more ambiguous and contested, but it can be seen as a positive development from a human rights and environmental perspective. Within this framework, the crucial importance of access to water, food, and energy is emphasised, as these basic needs must be addressed to ensure the law's adherence. ibid.

5.4. Constitutional Implications

Laws should maintain stability over time. Excessive amendments or frequent changes can undermine legal certainty. Consequently, the rule of law necessitates that states possess a constitution, whether it is codified or uncodified, that clearly outlines the organisational structure of a country and the division of power. Therefore, the rule of law is commonly recognised as a constitutional value that establishes a standard for measuring other laws and behaviours. It provides an interpretive framework for constitutional provisions directly and indirectly for all other laws. Including both procedural and substantive elements can strengthen commitments to legality. From a Constitutional Law standpoint, the rule of law can be understood by examining the concept of `constitutionality,' which refers to the adherence of state entities, including state organs, and individuals to objective legal principles as outlined in the highest legal document of a state, namely the Constitution. The Constitution, serving as the paramount legal instrument, delineates the demarcation between the conduct of the state and its organs and the safeguarded human and civil liberties and rights. The concept of constitutionality plays a significant role within the framework of the Constitution. Constitutions typically do not explicitly mention sustainable development in their founding provisions. While the SDGs are not legally binding, they are a policy instrument and a document rather than a treaty.

Constitutions imply sustainable development indirectly through their contextual and value- based framework, including human dignity, equality, and freedom. Social benefits, economic opportunities, and environmental resources must be equally accessible to everyone to lead a dignified life and enjoy these rights. Sustainable development is essential to improving people's quality of life and encompasses social, economic, and ecological conditions. In other words, sustainable development is necessary to achieve the broader constitutional ideals and specific objectives of human dignity, equality, and human rights protection. The wording in this segment suggests that sustainable development is an explicit constitutional objective as it is inherent to social, economic, and environmental rights.

Therefore, the government must achieve, promote, safeguard, respect, and advance sustainable development objectives through these rights. The right incorporates inter- generational and intra-generational characteristics associated with sustainable development, expressing the constitutional goal of balancing ecological, social, and economic considerations. However, some examples of domestic legal systems have constitutionally embedded sustainable development. South Africa included an environmental right in its 1996 Constitution Constitution of the Republic of South Africa (1996) <https://www.gov.za/documents/constitution- republic-south-africa-1996> accessed 10 July 2023. and implemented a comprehensive set of environmental laws to give effect to its broader policies and constitutional objectives. Through this constitutional entrenchment, sustainable development has become a focal point in the country's legal system.

5.5. The Rule of Law and Good Governance

The international community recognises the rule of law as a fundamental principle and safeguard of good governance, closely tied to sustainable development. The UN Secretary- General has confirmed this. UN Secretary-General (n 42) para 6. In his famous statement, Kofi Annan stated that `good governance may be the most significant factor in eliminating poverty and advancing development.' Rachel M Gisselquist, `What Does Good Governance Mean?' (UNU-WIDER Blog, January 2012) <https://www.wider.unu.edu/publication/what-does-good-governance-mean> accessed 10 July 2023. The rule of law is widely recognised as a fundamental aspect of promoting good governance. Various global declarations, such as those adopted at the World Summit in 2005, the High-level Meeting of the General Assembly on the Rule of Law in 2012, and the Sustainable Development Summit in 2015, have endorsed the interrelationship between good governance, the rule of law, and sustainable development. 2005 World Summit Outcome (n 48) para 11. These declarations are not merely aspirational; they are backed by compelling research demonstrating a strong correlation between adherence to the rule of law and sustainable progress in economic, political, social, and environmental dimensions. Thomas Higdon and Durwood Zaelke, `The Role of Compliance in the Rule of Law, Good Governance, and Sustainable Development' (2006) 3(5) Journal for European Environmental & Planning Law 376, doi:10.1163/187601006X00425. At the same time, the rule of law refers to a system of governance based on non-arbitrary principles, in contrast to a system that relies on the authority and arbitrary actions of a single absolute ruler. While effective decisionmaking processes, efficient implementation of policies and programs, transparency, accountability, participation, and inclusivity are all vital components of good governance, they must also be carried out following the principles of the rule of law. Without upholding the rule of law, the principles of good governance may be easily undermined by corruption, bias, or abuse of power. However, due to the complex and inherently political nature of the rule of law, there is no single understanding of it accepted by all member states of the UN, which makes it controversial. To quote Waldron, a sceptic might argue that the term `rule of law' has a grandiose ring, but ultimately, many may perceive it as nothing more than an expression of loyalty or enthusiasm for a particular side or viewpoint. Waldron (n 30).

6 INTERNATIONAL RULE OF LAW

The rule of law was developed at the state level and is traditionally not a standard or widely used term in international law. History would tell us that from the 17th century onwards, the rule of law has become a dominant legal principle within modern nation-states. At the same time, sovereignty has taken centre stage as the leading legal principle between states. This juxtaposition illustrates how the rule of law represents the domestic power structure of the state over its society. At the same time, sovereignty institutionalises the absence of hierarchy and order in international relations. Bingham's eighth principle asserts that the state must comply with its international responsibilities in the same manner as it complies with national law, as a requirement of the rule of law. Bingham (n 25) 110. This principle raises the issue of establishing an international rule of law. Although his essay primarily addresses the rule of law inside nations and the obligations of governments towards their populations, Bingham urges us to contemplate the presence and implementation of the rule of law at a global level. ibid 110-2. He queries the obligation of nation states to adhere to international accords established among themselves. Bingham's perspective is relevant, as well as the belief that we are currently observing the progression of a global system of legal principles, which we expect to advance further. Hence, while initially developed in the context of domestic legal systems, the concept of the rule of law extends beyond these frameworks and can be applied to supranational legal systems. NW Barber, `The Rechtsstaat and the Rule of Law' (2003) 53(4) University of Toronto Law Journal 443, doi:10.2307/3650895. It is possible to view the rule of law as a set of characteristics that should exist in all legal orders. However, it has become widely accepted in recent decades that the international legal and political system must also respect the rule of law. In other words, the concept of the rule of law within a country was applied by analogy to the global stage to close the divide between the two parties. SB Chimni, `Legitimating the Rule of Law' in J Crawford and M Koskenniemi (eds), The Cambridge Companion to International Law (CUP 2012) 290. The presence of the rule of law in the realm of international law is exemplified by the established protocols for formulating regulations within international organisations, including but not limited to the United Nations, the Council of Europe, and the European Union (EU). Enshrined in Article 2 of the Treaty of the European Union, the rule of law is a fundamental principle of the EU. Furthermore, it has evolved into a guiding principle for the Union's conduct in the international arena, as articulated in Article 21 of the Treaty. Nevertheless, the EU has encountered obstacles in maintaining the rule of law in every member state. Adnan Mahmutovic, `Erosion of the Rule of Law in the European Union' (2021) 24(S3) Journal of Legal, Ethical and Regulatory Issues 1. These protocols encompass enacting, implementing, and safeguarding these regulations, ensuring the protection of both states and individuals from infringing upon them. The legal community has experienced significant growth in the international rule of law (IROL) literature, reflected by academic conferences, research projects, and journals. Anne-Marie Slaughter, Andrew S Tulumello and Stepan Wood, `International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship' (1998) 92(3) American Journal of International Law 367, doi: 10.2307/2997914; Jeffrey L Dunoff and Mark A Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (CUP 2012) doi:10.1017/CBO9781139107310. However, there is little exploration of theoretical issues regarding the feasibility and desirability of IROL despite the increasing interest in the subject. Scholarly contributions to IROL mainly concentrate on legal doctrine, particularly analysing case law, but frequently assume the concept's value and justification. Denise Wohlwend, The International Rule of Law: Scope, Subjects, Requirements (Edward Elgar Pub Ltd 2021) doi:10.4337/9781789907421.

The essential meaning of the rule of law is the same at both the state and international levels. Unlike the vertical relationship between subjects and the state in domestic legal systems, the actors in the international legal order, namely states, stand on a horizontal footing. Therefore, the definition of the rule of law for the international legal order must be appropriate to its distinct nature, separate from that of national legal systems. Considering this structural difference, some authors identify three interpretations of the international rule of law: the application of the rule of law principles to states and other actors in international law, the supremacy of international law over national law, and the emergence of a global rule of law with normative regimes. Simon Chesterman, `Rule of Law' in A Peters and R Wolfrum (eds), The Max Planck Encyclopedia of Public International Law (OUP 2007) <https://opil.ouplaw.com/display/10.1093/law:epil/ 9780199231690/law-9780199231690-e1676?prd=EPIL> accessed 10 July 2023. International organisations have also advocated for the principles of the international rule of law to promote their mandates. For example, the UN defines the rule of law as the adherence to existing international laws and its fundamental principles enshrined in the UN Charter.

While consensus on the matter is lacking, it is widely acknowledged that sustainable development has emerged as a prominent topic in discussions within the realm of international law. Incorporating sustainable development into a range of international treaties, specifically those pertaining to the environment, constitutes the most extensive legal acknowledgement of this principle within the domain of international law. Consequently, sustainable development assumes a legally binding status within the parameters established by these treaties. However, it is imperative to emphasise that the binding nature of treaties exclusively applies to the parties involved, namely states or international organisations. Private actors, such as industries and individual citizens, are typically not subject to treaty obligations unless specific circumstances arise, such as situations involving individual criminal responsibility before the International Criminal Court. Marjan Peeters and Thomas Schomerus, `Sustainable Development and Law' in H Heinrichs and others (eds), Sustainability Science (Springer 2016) 110, doi:10.1007/978-94-017-7242-6_9. However, the primary remaining obstacle to achieving SDGs is ensuring compliance with international law and the rule of law at the global level, not just within individual states. While various institutions and organisations, such as the United Nations, monitor their treaties, no central legislative body is responsible for making international law accessible, clear, and specific.

Furthermore, to achieve better compliance with international law and ensure that breaches of international law are treated equally, idealists believe that the judicialisation of adjudication procedures is necessary. Bernhard Zangl, `Is there an Emerging International Rule of Law?' (2005) 13(S1) European Review 73, doi:10.1017/S1062798705000207. They argue that developing an international rule of law depends mainly on establishing sound judicial institutions for adjudication procedures rather than relying on diplomatic efforts. On the other hand, realists hold a different perspective, rejecting the idea that the design of adjudication procedures significantly impacts state compliance with international law or ensures that comparable breaches of international law are treated similarly. Given the anarchical nature of international relations, they believe powerful states will act as they please in both judicial and traditional diplomatic procedures. In contrast, weaker states will be left to suffer. ibid. Adopting judicialised adjudication procedures is a fundamental prerequisite for establishing an international rule of law. Unlike traditional diplomatic adjudication, judicialised procedures allow breaches of international law to be treated comparably, which is crucial for the emergence of an international rule of law. Cesare PR Romano, `The Proliferation of International Judicial Bodies: The Pieces of a Puzzle' (1999) 31(4) New York University Journal of International Law and Politics 709.

The role of courts in promoting sustainable development is a topic of discussion. Some argue that courts should focus on procedural aspects. Lu Liao, Mildred E Warner and George C Homsy, `Sustainability's Forgotten Third E: What Influences Local Government Actions on Social Equity?' (2019) 24(12) Local Environment 1197, doi:10.1080/13549839.2019.1683725. This approach aims to uphold fairness, transparency, and inclusivity in decision-making, thereby enhancing the legitimacy and accountability of environmental governance. On the other hand, there are proponents of courts intervening in substantive decision-making. Carine Nadal, `Pursuing Substantive Environmental Justice: The Aarhus Convention as a 'Pillar' of Empowerment' (2008) 10(1) Environmental Law Review 28, doi:10.1350/ENLR.2008.10.1.003. They believe courts possess the expertise and authority to assess whether decisions align with sustainability objectives and consider their broader societal and environmental impacts. By actively participating in substantive matters, courts can influence the development of policies and practices that support sustainable development goals. The appropriate extent of court intervention depends on factors such as the legal framework, the specific issue, and the balance between judicial and executive functions. Some legal systems empower courts to review and enforce environmental laws, while others grant administrative bodies more discretionary power. The level of judicial intervention may vary based on factors such as the severity of environmental harm, clear legal standards, and the availability of scientific evidence.

As we can see, the rule of law applies within national borders and between nations, yet its use in this context is not fully understood. The international rule of law is often discussed regarding determinacy, clarity, and predictability. Simon Chesterman, `An International Rule of Law?' (2008) 56(2) The American Journal of Comparative Law 331, doi:10.5131/ajcl.2007.0009. On the international stage, adherence to the rule of law entails fulfilling obligations under international law by those bound by it. Most of these obligations are outlined in treaties formulated by international organisations, which cover various legal issues. However, these international treaties are frequently crafted using ambiguous language, leaving room for interpretation. For instance, Article 18 of the 1969 Vienna Convention on the Law of Treaties states that a State that has signed or ratified a treaty must refrain from actions that would undermine its purpose before it comes into effect. Vienna Convention on the Law of Treaties (23 May 1969) <https://www.refworld.org/docid/ 3ae6b3a10.html> accessed 10 July 2023. The lack of clarity in this provision regarding its interpretation and obligations has been recognised as one of the significant drawbacks of the Convention. Environmental treaties often exhibit a common characteristic of employing vague language. For instance, the United Nations Framework Convention on Climate Change (UNFCCC) of 1992 lacks significant binding obligations for treaty participants. United Nations Framework Convention on Climate Change (1992) <https://unfccc.int/resource/ docs/convkp/conveng.pdf> accessed 10 July 2023. Still, it establishes an institutional framework for subsequent decision-making conducted by the Conferences of the Parties (COP). Within this decision-making process, the UNFCCC outlines principles that include recognising the right to sustainable development. However, the wording of the UNFCCC allows for considerable interpretation and does not provide a clear substantive rule regarding sustainable development. ibid, art 3, para 4. Therefore, the treaty parties are responsible for facilitating interpretation and policy development to establish binding commitments, as demonstrated in the Kyoto Protocol 1997. Kyoto Protocol to the United Nations Framework Convention on Climate Change (1997) <https://unfccc.int/resource/docs/convkp/kpeng.pdf> accessed 10 July 2023.

States are better informed of their legal obligations than individuals since they are parties to treaties and practices that establish international law. Additionally, protecting the liberty of national states is not as crucial as protecting the liberty of individuals. Therefore, invoking the Rule of Law in the international realm must not undermine the values it secures within national borders. Whether international institutions, such as the UN, should be bound by the Rule of Law remains controversial, as officials worry about diplomatic immunity and the potential unravelling of international action.

CONCLUSION

The rule of law is widely acknowledged as a timeless principle and a standard of legal conduct that has exhibited remarkable durability over time. Adhering to the rule of law principle is crucial for safeguarding and promoting both democracy and sustainable development. Moreover, breaches of the principle have far-reaching consequences for economic, social, and environmental endeavours, recognised as the primary foundations of the United Nations Sustainable Development Goals (SDGs) Agenda. Disregarding the rule of law significantly erodes confidence in the long-term progress of development. This comprehensive examination of the various dimensions of the correlation between sustainable development and the rule of law, encompassing domestic and global contexts, has substantiated the notion that these two principles pursue certain shared goals. One aspect to consider is that the rule of law functions as a fundamental criterion for determining constitutionality, guiding all legal statutes and processes. The rule of law provides a comprehensive analysis of legality through its emphasis on formal, procedural, and substantive elements. It prevents the abuse of authority and arbitrary decision-making by mandating that the government protect the fundamental rights of individuals and that all laws and government actions be logically connected to legitimate government objectives. The rule of law upholds the authority and stipulations of constitutional law by ensuring that all individuals and actions are governed by it.

Furthermore, it reinforces institutions by establishing principles that govern the interpretation of the constitution and laws; thus, it elevates the judiciary to the highest regard as a defender of the rule of law. In addition to assuring environmental rights and protection in general, the rule of law is crucial for supporting consumers, encouraging investments, establishing a stable business environment, and guaranteeing and protecting human rights. These are fundamental dimensions of the UN SDG Agenda. Sustainable development, on the other hand, not only explicitly emphasises the significance of the rule of law (UN SDG 16.3) but can also play an important role in upholding and strengthening the rule of law. Sustainable development incorporates the procedural aspects of the rule of law, establishing a benchmark for the creation and implementation of reasonable legislative and administrative measures aimed at achieving social, economic, and environmental wellbeing for present and future generations. This is accomplished by utilising the content and goals of the right to social, economic, and environmental well-being as the prevalent standard for the rule of law. In this regard, institutions must enact legislative and administrative measures that contribute to achieving these objectives. Failure to do so could be construed as violating the rule of law.

However, SDG 16 faces its greatest obstacle in the form of international compliance with the rule of law and international law. Although a number of institutions, including the United Nations, supervise their treaties, there is no centralised legislative body tasked with ensuring the clarity, accessibility, and certainty of international law. Notwithstanding these challenges, it is generally recognised that maintaining compliance with international law is critical for safeguarding the rule of law. While international law violations occur, they are generally considered exceptional circumstances rather than the norm. It is the duty of legal academicians and practitioners to analyse the integration of sustainability principles into legal frameworks and formulate practical implementation strategies for particular legal proceedings. Hence, it is critical to advocate for the progress and evolution of sustainability law in the wider field of sustainability sciences.

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