THE IMPACT OF LAW AND THE SUSTAINABLE CONSUMPTION IN NIGERIA
Abstract
The role of sustainable development has been increasingly recognized in international environmental law as a way to reconcile poverty eradication and resource exploitation with environmental protection. By contrast, little attention has been given to the concept of sustainable consumption. When international law mentions sustainable consumption, consumption and production are generally considered together, for instance in Goal 12 of the Sustainable Development Goals, addressing responsible consumption and production, and in UNEP’s 10-year sustainable ‘consumption and production programme.’ While some research on sustainable consumption has been conducted in sociology and anthropology, the focus in international environmental law has remained on production rather than consumption. This article seeks to open up a discussion on how consumption should be viewed and defined legally, and the role that law could play in promoting sustainable consumption.Keywords: sustainable development goals; sustainable consumption; consumption and production; international environmental law; role of law
1 Introduction
The concept of ‘sustainable development’ (‘SD’) owes its origins to studies, often led by developed-country scientists, which suggested that the existing model of development was unsustainable because the increase in human population and the current extraction, production, consumption and pollution patterns may result into humanity exceeding the Earth’s carrying capacity.1 This put the spotlight of the sustainability discourse on the developing world by directly linking the unsustainability of the development model with population growth.2 In response, developing countries pointed out that a significant share of the production needs of the West were outsourced and therefore, the blame for environmental degradation could not rest upon developing countries alone.3 They further stated that the ‘development’ of States in the Global South through exploitation of resources (sustainable or otherwise) could not be prevented, as developed countries themselves had been guilty of relying on such exploitation to achieve their levels of development.4It can be said that the global concept of SD started to develop as a response to this deadlock between developed and developing countries5 —as a way to suggest that the position of developed and developing States were not necessarily irreconcilable.
The most commonly quoted definition of SD was proposed by the Brundtland Report on ‘Our Common Future’:6development ‘meets the needs of the present without compromising the ability of future generations to meet their own needs.’7 As Marie-Claire CORDONIER SEGGER has observed, SD is not merely a ‘compromise term’ for more environmentally sound ways of exploiting natural resources, but overall, a way to formulate and implement a ‘new kind of development.’8 By focusing on development, the concept of SD suggested a focus on production and the need for production to rely on the sustainable exploitation of natural resources. Since the 1970s, an emerging body of legal principles and treaties has emerged in relation to the principle of SD, seeking to reconcile environmental and economic norms and regimes. Their integrated social, economic, and environmental purposes are often focused on development of a resource or resolution of a development challenge.9
These negotiations and the relevant literature, however, have given very little attention to what lies behind and drives production. As a rare exception, James SALZMAN observed: ‘concentrating on laws on the reduction of waste from pipes and smokestacks, we have neglected to address the reason we produce the waste in the first place.’10 In this context, sustainable consumption (‘SC’) relates to reducing the consumption of material goods that are resource-intensive and damaging to the environment.
Agenda 21’s chapter IV dealt with changing consumption patterns11 and called for ‘special attention to be paid to the demand for natural resources generated by unsustainable consumption and to the efficient use of those resources consistent with the goal of minimizing depletion.’12 Apart from coining the terminology of ‘sustainable consumption,’ the link between resource depletion and consumption was expressly stated in a widely accepted international document for the first time, namely Agenda 21. Chapter IV further acknowledged that excessive demands and unsustainable lifestyles among the wealthier segments of societies place immense stress on the environment.13 That the poorer segments of societies are unable to meet basic human needs highlights the need to put the responsibility of lowering consumption and improving consumption patterns on developed countries. In so doing, Agenda 21 provided a potentially far-reaching mandate for examining, questioning and revising consumption patterns—and, by implication, consumer behaviours, choices, expectations and lifestyles.14
This part of Agenda 21, however, has not led to continued international cooperation to promote a sustainable model of consumption. Two decades later, the Paris Agreement only contains a fleeting allusion to sustainable consumption in its Preamble:
Also recognizing that sustainable lifestyles and sustainable patterns of consumption and production, with developed country Parties taking the lead, play an important role in addressing climate change, as provided for in the Convention.15
SD has acquired a legal form that enables its interpretation to be used in environmental protection globally as well as nationally. For example, SD can be said to be a positive norm under international law due to its formulation in treaties such as the Marrakesh Agreement,16 UNCLOS,17 the Convention on Biological Diversity18 and a number of Free Trade Agreements,19 among others. SD has been discussed as a principle of international environmental law by the International Court of Justice in Gabčíkovo-Nagymaros20 and by Judge Bhandari in a separate opinion in Nicaragua v Costa Rica,21 as well as by various national and regional courts, even though the specific implications of this principle remain relatively ill-understood.22 SD is one of the six principles that EU policy must follow, in the application of the Treaty on the Functioning of the European Union.23 The adoption of the Sustainable Development Goals (‘SDGs’)24 reflects a global consensus on the importance of SD in guiding global policy-making.
Yet, this recognition of SD has inevitably put great emphasis on (economic) ‘development’ by depicting developing States as primarily States which ought to develop. As a globally recognized principle, SD helps maintain this status quo by focusing on the sustainable management of resources that are being depleted because of production. Over time, the modalities of development have been discussed extensively through SD, but not the quest for more consumption. Consequently, the fundamental question regarding the limits to individual and, by extension, societal consumption has been largely ignored.
2 The Development of Sustainable Consumption in International Law: A Brief History
CORDONIER SEGGER points out that in the 19th century, MALTHUS and RICARDO implied that environmental protection measures focusing solely on pollution will not be enough if the reasons we pollute are not focused upon.25This idea was couched in the vocabulary of population growth exceeding the Earth’s carrying capacity, which was a growing concern at that time. This approach of the growth of population and individual consumption as one of the fundamental causes of environmental harm was further pursued in the 1970s. For instance, Principle 16 of the Stockholm Declaration on the Human Environment called for demographic policies as one tool to reduce the impacts of societies on the environment.26
Likewise, the Brundtland Report shed light on the inequities between the consumption levels of the developed and the developing countries. While it did not define SC as such, the Brundtland Commission clearly saw promotion of SC as an essential component of SD.27 Yet, the Earth Summit of 199228 marked a sharp turn towards a development focus in international environmental law. From then on, environmental protection was seen as a modality of development and SD was essentially viewed as a way to ensure that natural resources could be exploited sustainably. To take the development-based narrative ahead by combining production and consumption, Principle 8 of the Rio Declaration on Environment and Development29 (‘Rio Declaration’) stated:
To achieve sustainable development and a higher quality of life for all people, States should reduce and eliminate unsustainable patterns of production and consumption and promote appropriate demographic policies.30
This principle combined demographic, environmental and developmental concerns, as it called for reduction and elimination of unsustainable patterns of production and consumption. The Rio Declaration, in effect, recognized the global long-term need to consume less, or consume better, or both,31 but it laid the foundation for defining SC as a combination of both production and consumption under the overarching umbrella of ‘sustainability’. In addition, Agenda 21 defined an extensive global action plan on specific environmental and development issues. Therefore, Chapter IV of Agenda 21 remains the most important policy document linking unsustainability with unchecked consumption and the need (especially for the West) to change current consumption patterns which are resource—and energy-intensive.32 However, sustainable consumption, unlike several principles of the Rio Declaration, translated into neither an international norm nor a legal concept, nor provided a basis to expand customary laws in this field, either through state practice or opinio juris. No provision on consumption was found in the three treaties33 adopted at or shortly after the Earth Summit.
The year 1992 was also marked by the creation of the UN Commission for Sustainable Development (UNCSD) by the General Assembly.34 The UNCSD was to supervise the implementation of Agenda 21. From its first session in 1993 onwards, however, the UNCSD put an increasing emphasis on poverty eradication and SD, with less attention to other provisions of Agenda 21—including the content of Chapter IV. In 2013, the UNCSD was replaced by a high-level political forum on SD, which is now a central platform for follow-up and review of the 2030 Agenda for Sustainable Development and the Sustainable Development Goals. Under the umbrella of SD, Goal 12 and its Targets are directed to ensuring sustainable consumption and production patterns (see further below).
Rewinding to 1997, a significant summit (with respect to SC) was held to review and appraise the implementation of Agenda 21.35 At this juncture, States had started viewing sustainable development as a podium supported by three interdependent pillars—economic development, social development and environmental protection—instead of SD’s previous focus on bridging environmental protection and economic development. This attitude was reflected in the resulting declaration ‘Programme for the Further Implementation of Agenda 21’ (‘Programme’) which was adopted by the UNGA.36 The Programme highlighted the importance of countries undertaking programmes eliminating unsustainable consumption patterns and suggested measures such as the promotion of Sustainable Consumption and Production (‘SCP’) through the imposition of taxes by governments and voluntary publication of environmental and social impact assessments by businesses, among others. The Programme suggested that national policies and strategies promoting SCP should be based on the principles of Common but Differentiated Responsibilities37 and Polluter Pays.38
The Johannesburg World Summit on Sustainable Development39 in 2002 focused on the implementation of SD in a globalized world in light of renewed commitments of the developed world to provide technological and financial assistance to developing countries. This set the study of international environmental law further in the context of sustainable production and related economic, administrative and political challenges for implementation of sustainable production in the third world. Annexed to the resolutions undertaken at the summit was a ‘Plan of Implementation’40 which addressed SCP by calling for a 10-year framework in support of regional and national initiatives to accelerate the shift towards SCP, discussed further below.
The concept of SC again came to the fore a decade later, in the outcome document of the UN Conference on Sustainable Development (‘Rio+20’). This outcome document identified the promotion of SCP patterns as a characteristic of green economic policies geared towards sustainable development and poverty eradication.41 In essence, it stated that SCP will lead to SD. The processes will relate to SP because that is how the world can sustainably ‘develop’, by ‘producing’ sustainably. The problem with this narrative is that it leaves SC (by itself) out of the picture by making no separate reference to it.
3 Understanding ‘Consumption’ through the Lenses of Law: Where and How Can the Law Interfere?
When does consumption become unsustainable and how do we define consumption and its sustainability? Further, what role does and should the law play in influencing our patterns and levels of consumption, if at all? Since the Earth Summit in 1992, when SC became synonymous with SCP, existing definitions under international processes started to define SCP as one concept. The UNCSD, at its second session, mandated the Oslo Ministerial Roundtable (hosted by the Norwegian Ministry of Environment and attended by governments, intergovernmental organisations, NGOs, business, trade unions and the academic community) to prepare elements for an international work programme on SCP.42Accordingly, the Oslo Roundtable on Sustainable Production and Consumption defined SCP as,
the use of goods and services that respond to basic needs and bring a better quality of life, while minimising the use of natural resources, toxic materials and emissions of waste and pollutants over the life cycle, so as not to jeopardise the needs of future generations.43
This definition has been influential in formulating the SDGs. In adopting the 2030 Agenda for Sustainable Development the Members of the United Nations committed:
… to making fundamental changes in the way that our societies produce and consume goods and services. Governments, international organizations, the business sector and other non-state actors and individuals must contribute to changing unsustainable consumption and production patterns, including through the mobilization, from all sources, of financial and technical assistance to strengthen developing countries’ scientific, technological and innovative capacities to move towards more sustainable patterns of consumption and production. We encourage the implementation of the 10-Year Framework of Programmes on Sustainable Consumption and Production. All countries take action, with developed countries taking the lead, taking into account the development and capabilities of developing countries.44
Further, the Oslo Roundtable report in its preface stated that the experts on the roundtable were focusing their analysis on the need for the developed world ‘to put its own house in order’ so far as consumption was concerned.45 The report went on to clarify that the concerns of the developing world were taken into account so that the transition to sustainable patterns of consumption in the industrialized countries contributed to, but did not substitute the SD needs of other parts of the world.46 In doing so, the Oslo Roundtable’s analysis shared the responsibility for implementing SCPmore or less equally between the developed and the developing world, something that the SDGs do not do as clearly or robustly.
Under the SDGs, the geographical burden of implementation of SCP-based programmes have fallen almost entirely on developing countries. Even though consumption patterns in countries of the Global North are still the highest in the world, the current SCP plan executed through Goal 12 of the SDGs looks at hazardous waste management and promotion of SP, while the manner in which we can define, address and regulate consumption itself remains unclear. The act of consuming and the regulation of consumer behaviour remained unaddressed because it is understandably difficult to regulate societal norms such as lifestyle, equity and cultural identity; these cannot be easily adjudicated in courtrooms or legislatures,47 in terms of consumer sovereignty and the freedom to consume as much in whichever way the consumer deems fit based on her cultural, social and economic reality. However, there is an urgent need to identify ways to regulate unsustainable consumption patterns.
Apart from James SALZMAN, who wrote on the relation between SC and the law in 1997,48 there has been no substantial legal academic engagement with the topic, at least in the English-speaking world. Sustainable or ‘conscious’ consumerism are subjects dealt with largely within sociology, anthropology and to an extent, under economic theory for changing current patterns of consumption. Yet, important legal questions regarding the role of the law in promoting, or at least in avoiding any hindrance to SC could be extremely meaningful.
4 Defining and Addressing Sustainable Consumption
At the outset, it must be acknowledged that addressing SC is a difficult task, since it involves questioning fundamental assumptions about the way modern societies function. Intervening in consumer behaviour contradicts the much-vaunted idea of ‘consumer sovereignty’, as promoting the reduction of consumption would threaten a variety of vested interests and undermine the key structural role that consumption plays in economic growth.49 Daunting as the task may be, it must be addressed in light of the fact that developing countries are fast following the Western path of over-consumption of material goods. A new global middle class of urban consumers is adopting, at an alarming pace, the diet, transportation systems and lifestyles that were once mostly limited to the Global North.50 Added to this is the inherent problem of governments being hesitant to curb consumption since economic growth is defined by it—consumption increases the tax base, at the very least. Therefore, defining SC within a coherent legal framework becomes a formidable task.
Sociologists have criticized ideas within positivist legal frameworks that attempt to regulate SC by calling them inadequate, in the light of the social and cultural processes which affect consumption patterns.51 Care must be taken so as to not shift the entire responsibility of regulating consumption only onto the consumer, since individual choices are in fact, macro processes at work, because consumer behaviour is the outcome of local as well as global linkages of social interdependencies.52
Addressing SC requires two basic developments. Firstly, it calls for an increased efficiency of consumption, including via technological improvements (eco-efficiency)—that is, using production resources more sustainably.53 Some efforts have been made in this respect, for instance through international programmed promoting clean energy and energy efficiency. Secondly and overall, the concept of SC suggests changes in consumption patterns and reductions in consumption levels in industrialized countries and, then, in the developing world.54 National and international efforts in this regard are most often neglected.55
