Law for Sustainability: the Key to Sustainable Development
Sustainability is a growing popular term in our society, but it is unclear whether our society truly understands the concept of sustainability. Sustainable development, particularly in relation to the environment, is a quest we should all pursue together, meaning politicians and legislators too are not exempt from this duty. They must create a framework where all stakeholders at multiple levels are taken into consideration, utilize both the old and new laws to come up with environmental resolutions that can foster sustainable development, and create tools to assess the ways in which these laws and policies are implemented. The key here is not “law and sustainability,” but “law for sustainability.”
Sustainability, though frequently observed in today’s Korean society, is a term that has not been fully adopted and understood by the people yet. The government is indeed trying to set up policies around the Sustainable Development Goals (SDGs), but to the rest of the public, its efforts are not recognized well. This should not be the case as more and more environmental concerns are rising while affecting the lives of many. In addition, seeing how sustainability is intertwined with not just the economy but also the other sectors, actions should be taken. We do not have to sacrifice the environment for development, nor do we have to the other way around. Laws and regulations can be made to hit two birds with one stone. Therefore, this article aims to introduce the concept of sustainability and the significance of implementing sustainable development along with the SDGs in all areas, particularly the legal area. Focusing on environmental laws, this article seeks to discover the dynamics between law and sustainability, and actions legislators should take in order to introduce sustainable development in law.
II. What is Sustainability
- Definition of Sustainability
According to the Cambridge Dictionary, sustainability is defined as “the quality of being able to continue over a period of time.” Environmental sustainability, in accordance, stands for causing little or no damage to the environment to preserve for future generations. One would argue that this sustainability, or environmental sustainability to be more specific, is something environmental activists, NGOs, or the UN would care about. Over the recent years, however, we have been seeing this term appear frequently in government policies and regulations, big conglomerates’ business plans and so on, to the point that even those who have never been interested in global issues have heard of it at least once. But does everyone know exactly where all of this started from, or why it became this big of an issue?
- The Beginning of Sustainable Development Goals
Sustainable Development Goals (SDGs) has been adopted by the UN Member States to carry on the work of the Millennium Development Goals (MDGs) that aimed to eradicate by 2015. The Rio Summit in 2012 decided to carry on the MDGs legacy, and member states agreed upon the implementation of the SDGs for the next 15 years. Compared to its precedent which only had 8 goals, SDGs consists of 17 goals which are then divided into more specific 169 targets, each having 1 to 3 indicators to help measure the progress of reaching the target. The new framework therefore provides a clearer guideline for governments and organizations to apply SDGs.
- Significance of the SDGs
We now live in a world where none of us, not even a single country can survive without the cooperation from others. On one side of the world, there are those suffering from poverty and diseases. Climate change is real, islands are disappearing, climate refugees are suffering, and animals are going extinct. On the other side of the world, business supply chains are intertwined globally and so comprehensively that one economic crisis would create a domino effect in other economies. On top of that, amidst the 4th industrial revolution and rapid development, we now have to face newer problems that we never could have imagined before. However, we must not forget that all of us essentially live together in one planet, and there is no other option but to do our best to preserve what we have right now and pass on to next generations. Fortunately, all is not lost, and there are ways to steer us all in a different direction. We cannot sacrifice development for the sake of preserving the environment, nor can we give up on development and bettering the lives of those in need. This is where sustainability comes in. That is why governments and organizations are trying so hard to achieve sustainability. That is why SDGs are important in all fields, especially the legal field.
III. Relationship Between Law and Sustainability
- Law for Sustainability
Environmental law may be crucial in achieving sustainability, but the necessary legal framework involves other laws too, such as land use and property laws, and tax laws (Dernbach and Mintz 532). Dernbach and Mintz explain in “Environmental Laws and Sustainability: An Introduction” that the question of how law is applied to sustainability is answered by the phrase, “law for sustainability.” The two further explain that law for sustainability goes hand in hand with governance for sustainability, because law is an essential tool to govern sustainably.
According to Dernbach and Mintz, law for sustainability can be achieved by doing the following: (1) integrating different laws in decision-making, (2) utilizing pre-existing laws, (3) sharing legal responsibility with sub-national governments, (4) using law to protect and restore ecological integrity, (5) having an engaged public and an independent judiciary, (6) translating sustainability into specific legal principles, (7) having credible and widely applicable assessment tools to evaluate the laws enacted, (8) allowing “soft law” (e.g., declarations at international conferences) to shift individual behavior. Law has various ways of contributing to solve the underlying challenges of sustainability. In other words, law for sustainability is about catalyzing the use of law to foster sustainability.
IV. Environmental Law-making for Sustainable Development
- When Designing Environmental Law
Milligan and Mehra suggest in their “Environmental Law Making and Oversight for Sustainable Development: A guide for Legislators” published by the United Nations Environment Programme that the environment must be recognized as a foundation of development, rather than something that is balanced with development, or protected only when there is sufficient economic or social progress. The authors provide three key principles national environmental laws should embed in order to align with the SDGs: (1) good governance, meaning making decisions based on the best available evidence and the inclusion of all stakeholders in an accountable fashion; (2) health, wealth and wellbeing for all, meaning decisions about the environment must contribute to bettering the lives of all and that no one is left behind; (3) maintaining or enhancing the environment and natural resources, meaning legislators should understand that health, wealth and wellbeing come from the environment, therefore decisions must account for and maintain the benefits provided by the environment.
Milligan and Mehra continue to state that although there is no single ‘best practice’ approach to environmental law-making for sustainable development, they can still highlight four features of designing effective environmental laws. First is ‘participation, incentives and empowerment’. Environmental laws should allow every stakeholder at multiple levels of scale the incentives to protect the environment and take innovative actions. Second is ‘mainstreaming of the environment across government and society’. ‘Across government’ means that environmental laws and law-making should make sure environmental considerations are shared throughout all parts of the government, especially those responsible for making economic policy. ‘Across society’ means that they should also continue to support raising awareness, build environmental expertise, and highlight the practical importance of the environment in daily lives. Third is ‘alignment with development needs and priorities’. This means that environmental laws and law-making should closely align with the rights of all people to live a healthy, happy, and a meaningful life. Fourth is ‘flexibility and responsiveness’. We live in a modern world where everything is complex and changes rapidly, so much so that laws and law-making should accommodate this complexity and dynamism. Thus, environmental law and law-making should facilitate fast action of government policies and cooperate with the private sector to support adopting voluntary self-complying measures.
- Actions Legislators Can Take
(1) To Align Government Decisions with Sustainable Development
According to Milligan and Mehra, identifying and seeking ongoing dialogue with government institutions and officials that are in charge of implementing the post-2015 global commitments concerning the environment and sustainable development can guide decision-making towards sustainable development. Also, launching formal parliamentary processes involving other legislators and representatives from multiple parts of the government and making the whole government take coherent and convergent action towards achieving SDGs and implementing other environment-related post-2015 global commitments can help align government decisions about the environment with sustainable development. The final action that can help government decisions and sustainable development go hand-in-hand is establishing coordinating committees or dialogues with those people to facilitate a whole action from the government in making decisions about the environment and sustainable development.
(2) To Hold Governments Accountable for Environmental Governance for Sustainable Development
It is not always the designing of laws that matters the most; the aftermath should be considered as well. Milligan and Mehra continue to introduce three key actions legislators can take to hold governments accountable regarding their progress towards environmental governance for sustainable development. They argue that legislators should encourage the publication of reports that deals with the environment and sustainable development that follows international best practice standards. Creating a space for ongoing parliamentary review of environmental governance and having the parliament reaffirming post-2015 commitments formally can also help in monitoring environmental governance.
V. Korean Environmental Law and Sustainability
Korea has witnessed a drastic development in its economy over the decades, but with the expense of the environment. Rapid industrialization from the 1960s was focused only on putting economic growth first, hence neglecting environmental protection throughout the time being. The result was an economic miracle, but with the cost of environmental degradation. Although political and legal responses to environmental problems came about, environmental law and policy in Korea are at an early stage, still evolving and developing. There is yet a paradigm shift to sustainable development in Korea, which means we have a long way to go. According to Rak-Hyun Kim, one barrier in the Korean legal institutional context is that the Korean environmental legislation does not hold state agencies accountable judicially or otherwise regarding how policies are created and implemented (40). In response, he insists on a new ethical framework to be constructed, which can introduce new legal obligations in relation to the environment. He further states that even though Korean environmental law is on its way towards sustainable development, it is yet to be recognized as the overarching guiding principle of Korean society (43). In short, he calls for the laws, institutional – both bureaucratic and judicial – and social reforms to bring about a bottom-up paradigm shift from economy to ecology (44).
It is unfortunate to think that there are those who still neglect our duties to preserve the environment for future generations. Fostering sustainable development is not merely about conserving the environment, but about ensuring the health and well-being of all. In this global age where every aspect of society is closely connected with each other, sacrificing one for the other is no longer a viable option. We must create a framework where all aspects, including both the environment and economic development can grow together. Legislators should understand now is not the time for personal benefits or getting more votes for the next election, but to create environmental laws that can guide us through sustainable development. It is sad that sustainable development is yet to be recognized as our top priority with many still ignorant towards this issue. Implementation of laws is one thing, but good law-making should precede. Before scrutinizing the implementation of laws for sustainable development, we should look at the current laws. If legislators and politicians do not update the laws, the Korean environmental law regime will remain where it has always been, and not move a single step forward. To conclude, the Korean environmental law should be worked on both ends – the law-making and the implementation in practical areas – to switch the paradigm that has long been degrading our environment, and we must work towards understanding and adopting the concept of sustainability closely to our daily lives.
Dernbach, John C., and Joel A. Mintz. “Environmental Laws and Sustainability: An Introduction.” Sustainability, vol. 3, no. 3, 2011, pp. 531–540., doi:10.3390/su3030531.
Kim, Rak-hyun. “Principles of Sustainable Development in Korean Environmental Law: Towards the Earth Charter Principles.” The New Zealand Postgraduate Law e-Journal, no. 4, pp. 1-44.
Milligan, Ben, and Malini Mehra. Environmental Law-Making and Oversight for Sustainable Development: A Guide for Legislators. United Nations Environment Programme, Law Division, pp. 1–53, Environmental Law-Making and Oversight for Sustainable Development: A Guide for Legislators.
“Sustainable Development Goals.” United Nations, United Nations, https://sustainabledevelopment.un.org/?menu=1300.
“SUSTAINABILITY: Meaning in the Cambridge English Dictionary.” Cambridge Dictionary, Cambridge University Press,
 “SUSTAINABILITY: Meaning in the Cambridge English Dictionary.” Cambridge Dictionary, Cambridge University Press,
 “Sustainable Development Goals.” United Nations, United Nations, https://sustainabledevelopment.un.org/?menu=1300.
 Dernbach, John C., and Joel A. Mintz. “Environmental Laws and Sustainability: An Introduction.” Sustainability, vol. 3, no. 3, 2011, pp. 531–540., doi:10.3390/su3030531.
 Milligan, Ben, and Malini Mehra. Environmental Law-Making and Oversight for Sustainable Development: A Guide for Legislators. United Nations Environment Programme, Law Division, pp. 1–53, Environmental Law-Making and Oversight for Sustainable Development: A Guide for Legislators.
 Kim, Rak-hyun. “Principles of Sustainable Development in Korean Environmental Law: Towards the Earth Charter Principles.” The New Zealand Postgraduate Law e-Journal, no. 4, pp. 1-44.