McGill Law Journal ~ Revue de droit de McGill
SUSTAINABILITY, GLOBAL JUSTICE, AND THE LAW:
CONTRIBUTIONS OF THE
HON. JUSTICE CHARLES DOHERTY GONTHIER
Marie-Claire Cordonier Segger*
Introduction
As United Nations (UN) Secretary General Kofi Annan noted in the
2002 World Summit on Sustainable Development (WSSD) in Johannes-
burg, South Africa, it is time to face an uncomfortable truth:
[Our] model of development … has been fruitful for the few, but
flawed for the many. A path to prosperity that ravages the environ-
ment and leaves a majority of humankind behind in squalor will
soon prove to be a dead-end road for everyone … Unsustainable prac-
tices are woven deeply into the fabric of modern life … [W]e can and
must weave in new strands of knowledge and cooperation.1
Evolving laws and justice systems form crucial elements of this global
fabric. Within the study and practice of law, it is not enough simply to
recognize the immensity of the challenges. As the life and contributions of
Justice Charles Doherty Gonthier eloquently demonstrate, it is possible
and indeed necessaryto inquire, to inspire, and to act in solidarity with
others.2 Current legal systems are intricately woven into the shared val-
uesand indeed the moralityof an increasingly interdependent world.
* Senior Director, Sustainable Prosperity; Director, Centre for International Sustain-
able Development Law (CISDL); Fellow, Lauterpacht Centre for International Law
(LCIL), Faculty of Law, Cambridge University. Warm gratitude is due to CISDL mem-
bers Ashfaq Khalfan, Markus Gehring, Michael Kerr, Sbastien Jodoin, Alexandra
Harrington, Arezou Farivar, Patrick Reynault, Adela Maciejewski Scheer, Camille
Brub, as well as professors Richard Janda, Armand de Mestral, Franois Crpeau,
and Konstantia Koutouki, among others, for their insights and contributions.
Marie-Claire Cordonier Segger 2010
Citation: (2010) 55 McGill L.J. 337 ~ Rfrence : (2010) 55 R.D. McGill 337
1 Marie-Claire Cordonier Segger & C.G. Weeramantry, eds., Sustainable Justice: Recon-
ciling Economic, Social and Environmental Law (Leiden: Martinus Nijhoff, 2005) at 1-2
[Sustainable Justice].
2 Michel Robert, Hommage lhonorable juge Charles Gonthier sa retraite de la Cour
suprme du Canada (2003) 48 McGill L.J. 175; Michel Morin, Charles D. Gonthier, un
juriste pris de
(21 July 2009), online: Le Devoir,
justice, Le Devoir
338 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
A growing respect for the dignity and basic needs of humanity as one
community is among these values, together with a sense of responsibil-
ityperhaps even dutytoward a common future. With wisdom, integ-
rity, generosity, courtesy, and compassion, Justice Gonthier served for
many as beacon and guide to find, develop, and implement a path to a
more just and sustainable development for Canada and for the world.
Justice Gonthier served law and society as a renowned jurist, both as
president of a leading Canadian judicial institute,3 and as justice of Can-
adas highest court. He continued to serve upon his retirement. His con-
tributions to society on all levels were tremendous. Among these contribu-
tions, in the eyes of jurists in Africa, the Americas, Europe, Asia, and
across the world, he will be especially remembered for his sincere efforts
to advance sustainable development as part of global justice. As a Wain-
wright Fellow at the McGill University Faculty of Law, he shared his wis-
dom, experience, and compassion with legal scholars of all ages. As the
founding chair of an international legal research centre,4 he inspired deep
and respectful collaboration among judges, academics, and lawyers,
guided rigorous academic inquiries and publications in many languages,
and hosted forums for civil national and international dialogue, becoming
a beloved mentor to a global network of jurists across the world.
He was a man of great modesty and also great beliefs. In honour of his
wisdom, his kindness, his integrity, as well as his ability to inspire and to
guide, this brief tribute highlights some of the key challenges that Justice
Gonthier, with courage and diplomacy, helped to identify and address in
the world. In keeping with his approach as a global mentor, the paper
does not dwell upon these problems, but instead highlights Justice Gonth-
iers values, principles, and future research agenda to illuminate how his
work will continue to inspire a new generation of legal minds.5
3 Canadian Institute for the Administration of Justice (CIAJ), online :
4 Centre
for
International Sustainable Development Law
(CISDL), online :
5 This tribute builds on several years of research. See e.g. Sustainable Justice, supra note
1; Marie-Claire Cordonier Segger & Ashfaq Khalfan, Sustainable Development Law:
Principles, Practices and Prospects (Oxford: Oxford University Press, 2004) [Cordonier
Segger & Khalfan, Sustainable Development Law]; Marie-Claire Cordonier Segger,
Sustainable Development in International Law in Hans Christian Bugge & Christina
Voigt, eds., Sustainable Development in International and National Law (Groningen:
Europa Law, 2008) [Cordonier Segger, Sustainable Development in International
Law]; Marie-Claire Cordonier Segger, Sustainable Development in International
Law in David Armstrong, ed., Routledge Handbook of International Law (New York:
Routledge, 2009) 355; Marie-Claire Cordonier Segger, Roderick Haig-Brown Centennial
Lecture (delivered at the University of Victoria, Faculty of Law, 2008) [unpublished].
SUSTAINABILITY, GLOBAL JUSTICE, AND THE LAW 339
I. Facing the Challenges of Globalization with Fraternity
Driven by economic globalization, environmental change, and de-
mands for social justice, the world is facing sweeping challenges. The
risks for both humanity and the earth have never been greater. But cur-
rent problems also present opportunities for global co-operation on an un-
precedented scale. With courage, wisdom, and vision, as embodied in the
thoughts and actions of Justice Gonthier, diverse societies can still learn
to work together for a common future. This future must understand and
respect environmental limits, use resources more sustainably, and ad-
dress long-standing global inequalities. International law has in the past
been part of the problem. But it can also be part of the solution.
It is almost a truism today that globalization has brought unprece-
dented change in the world with exponential growth in transboundary
connections, integration of transportation and communication systems,
increases in trade and investment flows, high commodity prices, global
growth of extractive industries, and new technologies.6 The environ-
menta fragile chain of interconnected ecological systems upon which
this planets life-support systems dependhas been one of the most sig-
nificant victims of present patterns of globalization.7 There is growing
public understanding that current degradation may lead to the loss of
many of humanitys greatest heritage treasures and thousands of species.
This is true internationally and in Canada. In Ontario v. Canadian Pa-
cific Ltd., Justice Gonthier explained,
It is clear that over the past two decades, citizens have become
acutely aware of the importance of environmental protection, and of
the fact that penal consequences may flow from conduct which
harms the environment. Recent environmental disasters, such as
the Love Canal, the Mississauga train derailment, the chemical spill
at Bhopal, the Chernobyl nuclear accident, and the Exxon Valdez oil
spill, have served as lightning rods for public attention and concern.
Acid rain, ozone depletion, global warming and air quality have been
highly publicized as more general environmental issues. Aside from
high-profile environmental issues with a national or international
scope, local environmental issues have been raised and debated
widely in Canada. Everyone is aware that individually and collec-
tively, we are responsible for preserving the natural environment.8
6 Joseph E. Stiglitz, Globalization and Its Discontents (New York: Norton, 2002); World
Bank, Globalization, Growth, and Poverty: Building an Inclusive World Economy by
Paul Collier & David Dollar (Washington, D.C.: World Bank & Oxford University Press,
2002).
7 Klaus Bosselmann, Ron Engel & Prue Taylor, Governance for Sustainability: Issues,
Challenges, Successes (Gland, Switzerland: IUCN, 2008).
8 Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031 at para. 55, 125 D.L.R. (4th) 385.
340 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
In the past, international law could be described as part of the problem
with respect to environmental protection. For instance, colonial rules and
outmoded concepts of sovereignty allowed impunity for actors that inter-
fered dangerously with the common atmosphere, eliminated entire spe-
cies, fouled freshwater systems upon which millions of lives depended, or
exploited resources such as fisheries or forests.
With regard to economic and social development, the globalization of
communications has also brought stark notice of the grinding poverty suf-
fered by a significant percentage of the population in the majority of the
world. UN agencies and others have warned that conditions are deterio-
rating, as many countries hover on the brink of a global food crisis and re-
covery from a major financial crisis remains fragile. International law has
not always been honourably engaged in these matters. After vastly un-
equal bargains, investment arbitration and odious debt contracts, for in-
stance, often shifted risks and burdens onto those least equipped to bear
them.9 And as recent events have shown, financial markets also have not
always been managed with the requisite level of diligence or responsibil-
ity.10 The law has been used, in short, to defend the interests of the few
against the needs and values of the many, including the earth.
Justice Gonthier was actively engaged for many years with interna-
tional associations such as the International Union for the Conservation
of Nature, the International Commission of Jurists, and lAssociation des
Hautes juridictions de Cassation des pays ayant en partage l’usage du
franais. He cared deeply about the duties that the worlds peoples owe to
one another and to the environment. For him, these duties were embodied
in the concept of fraternity, or what is sometimes called solidarity. His
deep understanding and championing of this value, together with its com-
plements of liberty and equality, has been illuminated excellently by oth-
ers.11 Here, it is important simply to underline that in the Gonthier con-
ception, fraternity/solidarity leads to community:
In my view, fraternity is simply the forgotten element of democracy,
which, although rarely identified, is nevertheless present throughout
our legal system. It is the glue that binds liberty and equality to a
civil society. It is intuitive. It is the forging element of a commu-
nity.12
9 Ibid.
10 World Bank, Global Monitoring Report 2009: A Development Emergency (Washington,
D.C.: World Bank, 2009).
11 Fabien Glinas, Une justice fraternelle lments de la pense de Charles Doherty
Gonthier, (2010) 55 McGill L.J. XXX.
12 Hon. Mr. Justice Charles D. Gonthier, On Fraternity: An Unspoken Value of the Char-
ter and Administrative Law (Remarks presented to the Council of Canadian Adminis-
SUSTAINABILITY, GLOBAL JUSTICE, AND THE LAW 341
Respect for other members of a community implies not fragmentation, but
rather recognition and inclusion of all in the laws of the community. This
point was recognized in Reference Re Secession of Quebec, where the Su-
preme Court of Canada held that
[a] democratic system of government is committed to considering
those dissenting voices, and seeking to acknowledge and address
those voices in the laws by which all in the community must live.13
The Gonthier conception of fraternity/solidarity was not small or national,
but rather visionary; it extended out of the past, toward the future, and
embraced the global community:
Au del de ses manifestations nationales, la fraternit peut stendre
lhumanit entire, comme en tmoigne le droit international hu-
manitaire, qui impose un respect minimum de la dignit humaine
mme dans la guerre. Elle peut galement stendre dans le temps, en
fondant des obligations envers les gnrations futures : obligations,
notamment, de leur lguer un environnement viable et un ordre mon-
dial fond sur la paix entre les nations.14
In the context of a globalized world, Justice Gonthier saw himself and all
of us as citizens in a community, with common interests, rights, and du-
ties toward one another. As his colleague serving as patron of his research
centre, Justice C.G. Weeramantry (former Vice President of the Interna-
tional Court of Justice) has noted that
the current generation is thus acting, in relation to future genera-
tions, in a manner that breaks every precept of human compassion
and morality … [T]he environment has in the past century been sub-
jected to human interference and future generations are being sub-
jected to potential damage at an exponentially increasing rate. An-
other generation of such exponential increase will render uninhabit-
able the planet which has supported humanity for thousands of gen-
erations in the past. The present generation thus carries on its
shoulders an awesome responsibility, the like of which has never
been borne by any generation since the human race began.15
Justice Weeramantry has also remarked,
trative Tribunals, Ottawa Congress Centre, 12 June 2000) at 3-4, online: Council of Ca-
nadian Administrative Tribunals
13 Reference Re Secession of Quebec, [1998] 2 S.C.R. 217 at para. 68, 161 D.L.R. (4th) 385.
14 Hon. Mr. Justice Charles D. Gonthier, La fraternit comme valeur constitutionnelle
(Rapport gnral presented to the 3me congrs, Association des Cours Constitutionnel-
les ayant en Partage lUsage du Franais, June 2003) at 720, online: ACCPUF
15 C.G. Weeramantry, Tread Lightly on the Earth: Religion, the Environment and the
Human Future (Colombo: Stamford Lake, 2009) at xiv.
342 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
[W]e have passed out of the area of co-existence, into the era of coop-
eration. This is not merely passive cooperation, but rather, active co-
operation. If we are to save our global inheritance, we must do so ac-
tively. We need, for this purpose, to be willing to surrender some
part of sovereignty to the rest of the world, accepting common guid-
ance by the global community.16
Justice Gonthier understood this sentiment deeply, and faced the chal-
lenge with courage, respect, and diplomacy. He sought to define the foun-
dational values that could assist in constructing these new forms of co-
operation: [F]raternity within a community evokes the idea of coopera-
tion: the pursuit of common interests by combining ones resourcesa no-
tion that itself calls for a redistribution of wealth in so far as this is com-
patible with the notion of individual responsibility.17 As he knew, there
are no simple solutions to complex problems. However, as was clear in his
international efforts, global conservation and development challenges are
not separate but rather fundamentally interwoven. They must be ad-
dressed together, engaging all of humanitys collective knowledge, capac-
ity, and creativity.
II. Fraternity, Global Justice, and Sustainable Development
It has been very difficult to find one universally acceptable definition
for development. As a bijuridical judge, Justice Gonthier often recognized
that societies, cultures, and geographies are diverse. However, as a global
civil society is constructed, we confront the challenge of diversity. The
Gonthier conception of fraternity/solidarity is contributing to this process
as a means to respect collectivities and their diversity, while recognizing a
profound common social responsibility:
La fraternit peut demander de tenir compte, lencontre de
lefficacit des mesures envisages, du respect des collectivits vises
et de leur diversit. La fraternit est la valeur qui anime la responsa-
bilit sociale des personnes, des institutions publiques et prives, de
tous les paliers de gouvernement, des entreprises et des organismes
non gouvernementaux.18
16 H.E. Judge Christopher G. Weeramantry, Foreword in Cordonier Segger & Khalfan,
Sustainable Development Law, supra note 5, ix at xi.
17 Hon. Mr. Justice Charles D. Gonthier, Fraternity: A Global Value Underlying Sustain-
able Development in Marie-Claire Cordonier Segger & C.G. Weeramantry, eds., Sus-
tainable Justice: Reconciling Economic, Social and Environmental Law (Leiden: Mar-
tinus Nijhoff, 2005) 33 at 41.
18 Charles Doherty Gonthier, Sustainable Development and the Law, Introductory Note
(2005) 1 McGill J.S.D.L.P 11 at 17 [Gonthier, Sustainable Development].
SUSTAINABILITY, GLOBAL JUSTICE, AND THE LAW 343
Originally, development was judged crudely by national increases in gross
domestic product. At present, most developing countries, the United Na-
tions Development Program (UNDP), and other global development insti-
tutions including the World Bank, have taken a very different approach,
focusing on the need for participatory progress toward improvements in
quality of life.19 As Amartya Sen explains in his Nobel Prize winning book,
Development as Freedom, development should increase our freedoms by
opening capabilities and opportunities for people.20
Global commitments to sustainable development have added an addi-
tional layer of complexity to development debates. In its origins in six-
teenth-century German forestry laws (Forstordnungen), sustainable de-
velopment meant using only the interest (the amount of forest that grew
every year), rather than destroying the capital (the forest ecosystem it-
self).21 This was not an end to progress but rather a commitment to devel-
opment of a different kind that respects the limits of the environment and
the needs of all members of society. Sustainable development debates to-
day centre upon respect for the needs of both present and future genera-
tions, which is sometimes called intergenerational equity.22 Justice
Gonthier noted,
When we consider environmental measures, we act not in rational
self-interest, for we as individuals often would not see the fruits of
our sacrifice. Instead, we take these steps so as not to harm future
inhabitants of this Earthin essence, we are protecting the next
generation. Forging a relationship between generations in a com-
munity is not rooted in liberty or equality, but rather, fraternity.23
Indeed, upon an examination of the Quebec Loi sur la qualit de l’envi-
ronnement, the Superior Court of Quebec has recognized,
[i]l sagit d’une loi dordre public destine protger la sant et le
bien-tre de la population non seulement en liminant ou contrlant
19 UNDP, Human Development Reports, supra note 9. See also UNDP, Human Develop-
ment Indices, online:
20 Amartya Sen, Development as Freedom (New York: Knopf, 1999) at xi-xiv.
21 Die braunschweigischen Forstordnungen (1913) 35 Forstwissenschaftliches Central-
blatt 175; Hans Carl von Carlowitz, Sylvicultura oeconomica (Leipzig: Verlegts Johann
Friedrich Braun, 1713) at 105.
22 UN, Agenda 21: Earth Summit The United Nations Programme of Action from Rio
(New York: UN, 1993) [Agenda 21]; World Commission on Environment and Develop-
ment, Our Common Future (Oxford: Oxford University Press, 1987) (commonly known
as the Brundtland Report).
23 Hon. Mr. Justice Charles D. Gonthier, Liberty, Equality, Fraternity: The Forgotten
Leg of the Trilogy; or Fraternity: The Unspoken Third Pillar of Democracy (2000) 45
McGill L.J. 567 at 573.
344 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
les sources de contamination ou pollution actuelles mais en contr-
lant les exploitations de faon protger le milieu de vie lavenir.24
The International Court of Justice, in the 1997 Case Concerning the Gab-
kovo-Nagymaros Project, has also recognized that [t]his need to recon-
cile economic development with protection of the environment is aptly ex-
pressed in the concept of sustainable development.25 And at the 2002 Jo-
hannesburg WSSD, over 190 countries further agreed that sustainable
development involves the full integration of environmental and social con-
cerns into economic development decision-making.26 In essence, to commit
to sustainable development is to commit to progress of a new kind on all
levels, to development that respects ecological limits and human needs,
and to development that can last.
III. Contributions to International Law and Scholarship
As explained above, international law has been a part of environ-
mental and development problems. But many have come to understand,
through the continuing and constructive efforts of mentors such as Justice
Gonthier, that international law can also be part of the solution. Sustain-
able development is an important goal for both individual countries and
the global community, and is part of the object and purpose of many im-
portant international treaty regimes.27 These treaties are guided by prin-
ciples, some of which may even be recognized as customary law.28 In 1972,
24 Qubec (P.G.) c. Carrire Landreville inc., [1981] C.S. 1020 at 1027.
25 Case Concerning the Gabkovo-Nagymaros Project (Hungary v. Slovakia), [1997] I.C.J.
Rep. 7 at 78 [Gabkovo-Nagymaros].
26 UN DESA, Report of the World Summit on Sustainable Development, c. I, res. 2 (Sales
No. E.03.II.A.1) (Johannesburg Plan of Implementation), online: UN Department for
Economic and Social Affairs
27 See ILA New Delhi Declaration of Principles of International Law Relating to Sustain-
able Development, 2 April 2002 (2002) 2 Intl Environmental Agreements 211 [New
Delhi Declaration]. See also Agenda 21, supra note 23; JPOI, supra note 26. See Cordo-
nier Segger & Khalfan, Sustainable Development Law, supra note 1.
28 Some have suggested that sustainable development should be recognized as a principle
of customary law in itself. See e.g. Gabkovo-Nagymaros, supra note 25. Vice-President
Weeramantry, in a separate opinion, wrote:
It is clear that a principle must be followed which pays due regard to
both [the needs of environment and development]. Is there such a principle,
and does it command recognition in international law? I believe the answer
to both questions is in the affirmative. The principle is the principle of sus-
tainable development and, in my view, it is an integral part of modern inter-
national law. It is clearly of the utmost importance, both in this case and
more generally (ibid. at 89).
But see Vaughan Lowe, Sustainable Development and Unsustainable Arguments in
Alan Boyle & David Freestone, eds., International Law and Sustainable Development:
SUSTAINABILITY, GLOBAL JUSTICE, AND THE LAW 345
the Stockholm Declaration laid out twenty-six principles for the protection
of the human environment.29 In 1992, the Rio Declaration further agreed
on twenty-seven principles on environment and development. After a dec-
ade of comprehensive study and analysis by the International Law Asso-
ciation (ILA), the 2002 New Delhi Declaration highlighted seven key prin-
ciples of international law on sustainable development.30 These principles
were reflected in the 2002 Johannesburg Principles on the Role of Law
and Sustainable Development.31 They were developed and adopted by the
chief justices and senior judges from over sixty countries at the 2002
Global Judges Symposium in South Africa during the 2002 World Summit
process in which Justice Gonthier, other civil law judges, and his research
centre played key roles. Providing a keynote address to the assembled ju-
rists, Justice Gonthier explained,
Fraternity is the heart of sustainable development. It calls for not
imposing solutions determined by ones own agenda rather than re-
gard for the needs as experienced and perceived by the recipients.
Where there is no fraternal impulse in the development endeavour,
there is no true understanding and commitment to the problems of
those in need.32
These principles were included in the outcomes of the 2002 World Summit
on Sustainable Development. They are an important expression of the
wisdom and perspectives shared by the judges and the rest of the world,
forming a collective call for understanding, knowledge, and action. As Jus-
tice Gonthier has noted, [j]udges cannot be afraid to look beyond their
national borders for tools that will assist in the analysis and interpreta-
Past Achievements and Future Challenges (Oxford: Oxford University Press, 1999) 19.
Whether or not there is yet a customary obligation to develop sustainably, there is
growing customary recognition of the need to integrate environmental and social con-
cerns into economic development in order to achieve sustainable development. See Cor-
donier Segger, Sustainable Development in International Law, supra note 1.
29 Declaration of the United Nations Conference on the Human Environment, 16 June
1972, UN Doc. A/Conf.48/14/Rev.1 (1973), 11 I.L.M. 1416, online: United Nations Envi-
ronment Programme
30 See New Delhi Declaration, supra note 27.
31 Johannesburg Principles on the Role of Law and Sustainable Development (Statement
adopted at the Global Judges Symposium, Johannesburg, South Africa, 1820 August
2002), online: United Nations Environment Programme,
hannesburg Principles]. See also Johannesburg Principles on the Role of Law and Sus-
tainable Development (2003) 15 J. Envtl. L. 107.
32 Hon. Justice Charles D. Gonthier, National Environmental Governance and the Role
of Law (Remarks delivered to the Global Judges Symposium, Johannesburg, South Af-
rica, 19 August 2002) at 12, online: United Nations Environment Programme
346 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
tion of vague or complex matters in environmental cases.33 The principles
adopted in the 2002 ILA New Delhi Declaration and in South Africa ad-
dress todays concerns about advancing sustainability and are incorpo-
rated into law by treaties, parliaments, and judiciaries across the globe.
They were deeply meaningful to Justice Gonthier in his public and per-
sonal life,34 and they continue on as a testament to his international di-
plomacy and beliefs. Here, it is possible to highlight only a selection that
forms essential elements of his legacy, as jurists continue to inquire, de-
velop, and implement international law on sustainable development.
First, as emphasized in the Stockholm Declaration35 and the Rio Dec-
laration36, states have sovereign rights over their natural resources,37 but
they also have a related duty not to cause (or allow) undue damage to the
environment of other states in the use of these resources. This principle is
gaining increasing global recognition by courts and tribunals.38
Second, as judges have emphasized, there is a need to promote a just
distribution of resources among members of the present generation while
taking into account the needs of future generations in making decisions
about allocations of resources.39 As Justice Gonthier noted, [a] moral ap-
proach might even suggest that what we do is always under fiduciary
duty of some kind to manage the planet for the needs of future genera-
tions.40 Furthermore, the principles and their associated programs sup-
port the recognition of a duty to reduce poverty progressively.41 The prin-
33 Gonthier, Sustainable Development, supra note 18 at 14.
34 See LHon. Charles Gonthier, Laction du juge en matire denvironnement : quelques
rflexions sur les principes et leur mise en oeuvre (Presentation made to the Conf-
rence des prsidents des Cours suprmes des tats francophones dAfrique sur la
contribution du droit au dveloppement durable, Paris, France, 4 February 2005), on-
line: Association des Hautes juridictions de cassation des pays ayant en partage lusage
du franais
35 Supra note 38.
36 Rio Declaration on Environment and Development, 14 June 1992, UN Doc.
A/Conf.151/26 (Vol. I) (1992), 31 I.L.M. 874, online: United Nations Environment Pro-
gramme
37 See generally Nico Schrijver, Sovereignty Over Natural Resources: Balancing Rights
and Duties (Cambridge: Cambridge University Press, 1997).
38 See e.g. Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Pro-
visional Measures, Order of 23 January 2007, [2006] I.C.J. Rep. 3, online: International
Court of Justice
velopment in International Law, supra note 5.
39 See Johannesburg Principles, supra note 30; Lord Justice Carnwath, Judicial Protec-
tion of the Environment: At Home and Abroad (2004) 16 J. Envtl. L. 315 at 316.
40 Gonthier, National Environmental Governance, supra note 31 at 12-13.
41 See Johannesburg Principles, supra note 30.
SUSTAINABILITY, GLOBAL JUSTICE, AND THE LAW 347
ciple of equity underlies many of the core principles in the UN human
rights instruments.42
Another principle concerns states common but differentiated obliga-
tions. Though states have a common responsibility to protect the envi-
ronment at the national, regional, and global levels, it shall be balanced
with the need to account for different circumstances. In particular, each
states historical contribution to a particular problem must be taken into
account, as well as its ability to prevent, reduce, and control the threat.43
Further, judges have recognized the need to take a precautionary ap-
proach to human health, natural resources, and ecosystems.44 This pre-
cautionary approach, they have held, shall be widely applied by states ac-
cording to their capabilities. The ILA has also defined this principle, rec-
ognizing that where there are threats of serious or irreversible damage,
lack of full scientific certainty will not justify postponing cost-effective
measures to prevent degradation.45 In essence, precaution shifts the bur-
den of proof to those proposed activities that might cause serious harm.46
42 Human rights treaty bodies have alluded to the notion of intergenerational equity. See
The Right to Adequate Food (Art. 11), UN ESCOR, 20th Sess., General Comment 12,
Agenda Item 7, UN Doc. E/C.12/1999/5 at para. 7; The Right to Water (Arts. 11 & 12),
UN ESCOR, 29th Sess., General Comment 15, Agenda Item 3, UN Doc. E/C.12/2002/11
at para. 11. Equally, the concern for how current needs and rights affect the future
health and development of the child is central to the UN Convention on the Rights of the
Child. See e.g. Adolescent Health and Development in the Context of the Convention on
the Rights of the Child, UN CRCOR, 33d Sess., General Comment 4, UN Doc.
CRC/GC/2003/4 at para. 17. See also International Covenant on Economic, Social and
Cultural Rights, 19 December 1966, 993 U.N.T.S. 3, Can. T.S. 1976 No. 46, 6 I.L.M. 360
(entered into force 3 January 1976) [ICESCR]; United Nations Convention to Combat
Desertification in those Countries Experiencing Serious Drought and/or Desertification,
Particularly in Africa, 17 June 1994, 1954 U.N.T.S. 3, 33 I.L.M. 1328 (entered into force
26 December 1996) [UN CCD]; The International Treaty on Plant Genetic Resources for
Food and Agriculture, 3 November 2009 (entered into force 29 June 2004), online:
Intergenerational Equity and Rights in Sbastien Jodoin, Marie-Claire Cordonier
Segger & Maja Gopel, eds., Securing the Rights of Future Generations (Cambridge:
Cambridge University Press) [forthcoming in 2010].
43 See Gonthier, Laction du juge, supra note 33. See also Lavanya Rajamani, Differen-
tial Treatment in International Environmental Law (Oxford: Oxford University Press,
2006); Duncan French, Developing States and International Environmental Law: The
Importance of Differentiated Responsibilities (2000) 49 I.C.L.Q. 35.
44 Judges recall the principles adopted in the Rio Declaration on Environment and De-
velopment and affirmed adherence to these principles which lay down the basic princi-
ples of sustainable development: Johannesburg Principles on the Role of Law and Sus-
tainable Development (2003) 15 J. Envtl. L. 107 at 107.
45 The Rio Declaration (supra note 36) states that [i]n order to protect the environment,
the precautionary approach shall be widely applied by States according to their capa-
bilities (Principle 15). See also Gonthier, National Environmental Governance, supra
348 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Another principle recognized in the New Delhi Declaration and by the
ILA involves the need to encourage public participation in environment
and sustainable development processes, supported by access to informa-
tion and justice. As Justice Gonthier noted,
[l]a participation du public est essentielle. Les questions environ-
nementales et de dveloppement durable sont essentiellement
dintrt public. Le plus souvent, elles ne touchent pas que les parties
en cause mais au contraire, ont des incidences sur lensemble de la
socit.47
Further, and perhaps most significantly, the principle of integration and
interrelationship, particularly for social, economic, and environmental ob-
jectives, forms the basis of international law on sustainable develop-
ment.48
In recent years, as negotiators from developing countries have become
more skilled in representing their countries interests, these principles
have been adopted in international treaties. Such negotiations can pro-
vide a way to ensure that larger, more powerful countries take into ac-
count the worlds diversity of societies, languages, economies, geogra-
phies, and perspectives. They commit to global mechanisms for sustain-
able development co-operation and may serve as an important tool for fac-
ing the global challenges highlighted above, but only if it is possible to
learn effective implementation. Through eight years of international legal
research and analysis, published in over twenty volumes, the work of Jus-
tice Gonthiers research centre has focused on building knowledge and
understanding of these treaties. Justice Gonthier stated,
note 31; James Cameron & Juli Abouchar, The Precautionary Principle: A Fundamen-
tal Principle of Law and Policy for the Protection of the Global Environment (1991) 14
B.C. Int’l & Comp. L. Rev. 1; Arie Trouwborst, Evolution and Status of the Precaution-
ary Principle in International Law (The Hague: Kluwer Law International, 2002).
46 See Franz Perrez, Precaution from Rio to Johannesburg: An Introduction in Precau-
tion from Rio to Johannesburg: Proceedings of a Geneva Environment Network Round-
table (Geneva: United Nation Environment Programme for the Geneva Environment
Network, 2002) 5 at 6; Rio Declaration, supra note 36; Southern Bluefin Tuna Cases,
Cases Nos. 3 & 4 (New Zealand v. Japan; Australia v. Japan), Provisional Measures,
Order of 27 August 1999, online: International Tribunal for the Law of the Sea
Diversity, 29 January 2000, 2226 U.N.T.S. 208, 39 I.L.M. 1027 (entered into force 11
September 2003) [Cartagena Protocol].
47 Gonthier, Laction du juge, supra note 33.
48 Rio Declaration, supra note 36, s. 4; Cordonier Segger, Sustainable Development in In-
ternational Law, supra note 5, analyzing United StatesImport Prohibition of Certain
Shrimp and Shrimp Products (Complaint by India, Malaysia, Pakistan, and Thailand)
(1998), WTO Doc. WT/DS58/AB/R
(Appellate Body Report), online: WTO
SUSTAINABILITY, GLOBAL JUSTICE, AND THE LAW 349
Sustainable development law seeks to bring together, rationalize,
reconcile and harmonize the various strands of the law; of legal rules
needed to govern the environment and human activity in both its
aspects, economic and social. It involves environmental law and hu-
man rights law, just as it implicates property law, contract law, in-
tellectual property and the protection of genetic resources, aboriginal
rights and trade disputes.49
With Justice Gonthiers encouragement, four categories of important in-
ternational treaties for sustainable development began to be studied in
depth.
Two generations of relevant multilateral environmental agreements
make up the first category. From 1968 to 1992, states signed treaties that
did not necessarily take developing countries and development concerns
into account, but nevertheless made important progress in environmental
protection and conservation.50 From 1992 to 2010, states have negotiated
a second generation of environmental treaties. This second generation of
treaties also seeks to promote conservation of the environment, but each
also has a second, very important objective: sustainable development.51
These treaties include the United Nations Framework Convention on Cli-
mate Change and its associated legal accords, which are, as Justice Gon-
thier has explained, un exemple tonnant de recours fusionns aux traits,
49 Gonthier, Sustainable Development, supra note 18 at 11-12.
50 Convention on International Trade in Endangered Species of Wild Fauna and Flora, 3
March 1973, 993 U.N.T.S. 243, 12 I.L.M. 1085 (entered into force 1 July 1975); Basel
Convention on the Control of Transboundary Movements of Hazardous Wastes and
Their Disposal, 22 March 1989, 1673 U.N.T.S. 126, 28 I.L.M 657 (entered into force 5
May 1992); Convention for the Protection of the Ozone Layer, 22 March 1985, 1513
U.N.T.S. 323, 26 I.L.M. 1516 (entered into force 22 September 1988); Montreal Protocol
on Substances that Deplete the Ozone Layer, 16 September 1987, 26 I.L.M. 1550 (en-
tered into force 1 January 1989); African Convention on the Conservation of Nature and
Natural Resources, 15 September 1968, 1001 U.N.T.S. 3 (entered into force 16 June
1969).
51 Convention on Biological Diversity, 5 June 1992, 1760 U.N.T.S. 79, 31 I.L.M. 818 (en-
tered into force 29 December 1993). See also Cartagena Protocol, supra note 45; United
Nations Framework Convention on Climate Change, 9 May 1992, 1771 U.N.T.S. 107, 31
I.L.M. 849 (entered into force 21 March 1994); Kyoto Protocol to the United Nations
Framework Convention on Climate Change, 11 December 1997, 2303 U.N.T.S. 148, 37
I.L.M. 22 (entered into force 16 February 2005); Stockholm Convention on Persistent
Organic Pollutants, 22 May 2001, 40 I.L.M. 532 (entered into force 17 May 2004); Con-
vention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and
Pesticides in International Trade, 10 September 1998, 38 I.L.M. 1 (entered into force 24
February 2004); Convention on Environmental Impact Assessment in a Transboundary
Context, 25 February 1991, 1989 U.N.T.S. 309 (entered into force 10 September 1997),
online: United Nations Economic Commission for Europe
tocol on Strategic Environmental Assessment, 21 May 2003 (entered in force 11 July
2010), online: UN Economic Commission for Europe
350 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
lois, rglements, volontariat, thique et incitatifs conomiques, allant jus-
qu crer une nouvelle valeur mobilire et son march international.52
Second, research has focused on covenants and institutions related to
human rights and social justice. It is becoming clear that respect for im-
portant social, economic, and cultural rights (including rights of indige-
nous peoples) is also essential to support sustainable development. From
1947 to 2008, UN human rights accords and institutions have worked to
realize these rights.53 As 190 countries recognized in the 2002 WSSD Jo-
hannesburg Plan of Implementation, these social justice instruments are
part of our global architecture to achieve sustainable development. And
certainly, without respect for the social pillar and related social justice
priorities, sustainable development would be impossible. Work will con-
tinue in this area with passion and dedication.
Commitments to sustainable development are also being identified in
many international economic treaties, particularly those that have sought
to take global public interests into greater account in recent years. Since
1947, these international, regional, and bilateral regimes for trade, in-
vestment, and finance (including the World Trade Organization) have be-
gun to integrate and respond to sustainable development as part of their
purpose.54 Legal research will also continue in this area, charting the
course for more responsible international economic rules.55
52 Charles D. Gonthier, Les Chartes nos rles et dfis. Valeurs, droit et thique in Ac-
tes de la XVIIe Confrence des juristes de ltat (Montral : Yvon Blais, 2006) 99 at 119.
53 See ICESCR, supra note 41 (recognizing, as many scholars argue, rights to food, water,
health and a clean environment); Convention on the Elimination of All Forms of Dis-
crimination against Women, 18 December 1979, 1249 U.N.T.S. 13, Can. T.S. 1982 No.
31 (entered into force 3 September 1981); Convention on the Rights of the Child, 20 No-
vember 1989, 1577 U.N.T.S. 3, Can. T.S. 1992 No. 3 (entered into force 2 September
1990). See also the customary rules reflected in the recently agreed United Nations Dec-
laration on the Rights of Indigenous Peoples (GA Res. 61/295, UN GAOR, 61st Sess.,
UN Doc. A/Res./61/295 (13 September 2007)). See generally International Labour Or-
ganization, online: ILO
54 See e.g. Agreement Establishing the World Trade Organization, 15 April 1994, 33 I.L.M.
1144 (entered into force 1 January 1995), online: World Trade Organization
of Canada, the Government of Mexico and the Government of the United States, 17 De-
cember 1992, Can. T.S. 1994 No. 2, 32 I.L.M. 289 (entered into force 1 January 1994)
[NAFTA]; Canada-Chile Free Trade Agreement, 5 December 1996, Can T.S. 1997 No. 50
(entered into force 5 July 1997), online: Foreign Affairs and International Trade Can-
ada
June 2003, 42 I.L.M. 1026 (entered into force 1 January 2004), online: Office of the
United States Trade Representative
sociation Agreement, 18 November 2002, 45 O.J. L352 (30 December 2002) (entered into
force 1 March 2005); Partnership Agreement Between the Members of the African, Car-
ibbean and Pacific Group of States of the One Part, and the European Community and
SUSTAINABILITY, GLOBAL JUSTICE, AND THE LAW 351
Finally, a new category of treaties is emerging with the negotiation
and implementation of instruments that integrate social, economic, and
environmental concerns. In this research, as documented by the jurists of
Justice Gonthiers centre, there is an effort to focus on the design of laws
that can actually be implemented. As Justice Gonthier was wont to note,
[o]ne can no more legislate cleanliness than virtue if people are not pre-
pared to abide by the laws.56 These regimes focus on the sustainable de-
velopment of common global resources, addressing the concerns high-
lighted above in a manner that integrates social, environmental, and eco-
nomic concerns to provide for the needs of present and future genera-
tions.57
IV. Future Directions
In the future, the international work of Justice Gonthier will continue
as a legacy to honour his memory. Justice Gonthier has advised, shaped,
and inspired a new generation of lawyers to dedicate their minds to the
benefit of the most vulnerable populations of the world. This global net-
work is now actively investigating and practising sustainable develop-
ment law. While it is impossible to explain all the efforts he has inspired
in this short tribute, we can identify three key directions in the continuing
work of the many jurists whose lives he has touched around the world.58
Its Member States, of the Other Part (Cotonou Agreement), 23 June 2000, 43 O.J. L317
(15 December 2000) (entered into force 1 April 2003); Markus W. Gehring & Marie-
Claire Cordonier Segger, eds., Sustainable Development in World Trade Law (London,
U.K.: Kluwer Law International, 2005); Gary P. Sampson, The WTO and Sustainable
Development (New York: United Nations University Press, 2005).
55 See ibid.; Convention on the Settlement of Investment Disputes, 18 March 1965, 575
U.N.T.S. 159, 17 U.S.T. 1270 (entered into force 14 October 1966); United Nations
Commission on International Trade Law Conventions; NAFTA, supra note 46, c. 11;
Treaty Concerning the Reciprocal Encouragement and Protection of Investment, United
States and Argentina, 14 November 1991, 31 I.L.M. 124. See Markus Gehring, Marie-
Claire Cordonier Segger & Andrew Newcombe, eds., Sustainable Development in World
Investment Law (The Hague: Kluwer Law International, 2010).
56 Charles D. Gonthier, Remarks on the Charter: Rights, Duties and Responsibilities
(1991) 40 U.N.B.L.J. 193 at 195.
57 UN CCD, supra note 41; Seed Treaty, supra note 41. See also the venerable United Na-
tions Convention on the Law of the Sea, itself (10 December 1982, 1833 U.N.T.S 3, 33
I.L.M. 1309 (entered into force 16 November 1994)) and its International Tribunal, as
well as many of the Regional Fisheries and Seas Conventions.
58 Over the next ten years, the Cambridge University Press plans to publish fourteen vol-
umes in a series that will be dedicated to his memory. See Marie-Claire Cordonier Seg-
ger & Markus W. Gehring, eds., Treaty Implementation for Sustainable Development
(Cambridge: Cambridge University Press) [forthcoming], online: Cambridge University
Press
352 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
First, many will focus on the scholarly analysis and legal practice nec-
essary to improve incentives, take down barriers, and make sustainable
options more favourable for individuals and countries. This is being done
through the treaties and tribunals mentioned above (many of which have
over 160 parties) and through related financing and capacity-building in-
struments like the newly replenished Global Environment Facility. It is
also being done through voluntary measures, such as the growth of ethical
investing standards, fair trade instruments, and the design of responsible
investment codes in nearly every sector of the global economy. These vol-
untary measures are also worthy of further investigation. Justice Gonth-
ier explained,
On constate que le public est souvent prt se soumettre volontai-
rement certaines restrictions pour le bien commun. On peut penser,
par exemple, la protection de lenvironnement : le recyclage, mme
facultatif, remporte trs souvent le soutien enthousiaste du public. De
mme, plusieurs industries mettent en place des mesures volontaires
pour contribuer la protection de lenvironnement. De nombreux ci-
toyens expriment une proccupation sincre quant au bien-tre des
gnrations futures, qui pourtant ne les affecte pas directement.59
Second, many will continue to research and act to ensure that the con-
sequences of irresponsible actions are meted out and taken more seri-
ously. Progress has already been made in this area. The International
Criminal Tribunal for the Former Yugoslavia alone has secured fifty-six
convictions, with forty-four more pending, and another thirty-six having
already died in prison. There is increasing respect for the International
Criminal Court, which prosecutes genocide, war crimes, and crimes
against humanity involving its 160 member countries. Recent innovative
proposals include recognition of a new category of crimes against future
generations. Jurists are also working to secure better enforcement of anti-
corruption conventions and related international instruments.60
59 Charles D. Gonthier, Les tribunaux, le parlement et les mdias au service du public et
de la justice in Patrick A. Molinari, ed., Dialogues sur la justice: le public, le lgislateur,
les tribunaux et les mdias (Montreal: Thmis, 2002) 415 at 427.
60 For anti-corruption conventions, see e.g. Convention Against Corruption, 9 December
2003, 43 I.L.M. 37 (entered into force 14 December 2005); Convention on Combating
Bribery of Foreign Public Officials in International Business Transactions, 17 December
1997, 37 I.L.M. 1 (entered into force 15 February 1999); African Union Convention on
Preventing and Combating Corruption, 11 July 2003, 43 I.L.M. 5 (entered into force 5
August 2006); Council of Europe Criminal Law Convention on Corruption, 27 January
1999, Eur. T.S. 173, 38 I.L.M. 505 (entered into force 1 July 2002); Council of Europe
Civil Law Convention on Corruption, 4 November 1999, Eur. T.S. 174 (entered into
force 1 November 2003); Inter-American Convention Against Corruption, 29 March
1996, O.A.S. Treaties Register B 58, 35 I.L.M. 724 (entered into force 6 March 1997).
SUSTAINABILITY, GLOBAL JUSTICE, AND THE LAW 353
The third, perhaps most fascinating directive of the future is to exam-
ine the rules and governance of systems themselves.61 New research has
been launched and will continue on the interactional nature of interna-
tional regimes,62 on new ideas of representation and territory in interna-
tional law, and on new ways to engage nonstate actors. A focus on the du-
ties that accompany rights, which was an abiding interest to Justice
Gonthier, is at the core of these investigations. He believed firmly in cor-
porate social responsibility.63 More than encouraging firms to exercise ac-
countability, he sought recognition that, in light of fraternity, the growing
importance of firms also entails greater responsibility for firms. Firms
have a responsibility not just to their own shareholders but also to all
their stakeholders, including members of society and the environment,
who can be affected by corporate action. In this area, legal scholars and
others focus on encouraging firms to exercise greater corporate account-
ability in domestic courts through ever-tighter rules on disclosure in the
worlds stock markets, and in the court of public opinion.64 Jurists are pas-
sionately working to find ways in which international law can better hear
and address the concerns and interests of the worlds indigenous peoples.
Further, there is deeper transversal research and thinking to be done, as
well as new contributions to be made, to our understanding of the coher-
ence, fragmentation, and integration of international law on sustainable
development.
Justice Gonthier was a subtle and brilliant jurist with a marvellously
open mind. He interacted often with young scholars in Canada and
abroad, sparking ideas, challenging assumptions, and guiding the devel-
opment of legal minds. Through this engagement, he imparted legal rig-
our, a sense of honour, and a deep commitment to stay the course. At all
levels, he would encourage the legal imagination, investigation, and im-
plementation of intricate solutions to complex problems based on a strong
respect for foundational values. In the future, a rich and fascinating syn-
61 See Michael Byers, ed., The Role of Law in International Politics: Essays in Interna-
tional Relations and International Law (Oxford: Oxford University Press, 2000); John
Gerard Ruggie, Reconstituting the Global Public Domain Issues, Actors, and Prac-
tices (2004) 10 European Journal of International Relations 499.
62 This research follows in the footsteps of work by Stephen Toope, Jutta Brunne, Jason
MacLean, and Roman Picherack. See e.g. Jutta Brunne & Stephen J. Toope, Interac-
tional International Law (2001) 3 International Law FORUM du droit international
186.
63 See Michael Kerr, Richard Janda & Chip Pitts, Corporate Social Responsibility: A Legal
Analysis, ed. by Chip Pitts (Markham, Ont.: LexisNexis, 2009) (preface by Hon. Charles
Doherty Gonthier).
64 See ibid.
354 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
thesis, research, and action agenda will be carried forward in his legacy,
building the legal community that is needed in a truly global civil society.
Conclusion
The legacy of Justice Gonthier is very significant in many areas. One
of these areas, to which he turned especially at the end of his career, in-
volved sustainable development and international law. His work will be
carried forward, guided by his values. For,
as a complement to the rule of law, there is the spirit of the law. The
spirit of the law is not concerned so much with setting down rules.
Rather, it reflects the values which a society draws upon in its de-
velopment of legal rules. Sharing the logic of sustainable develop-
ment, these values of the spirit of the law must include cooperation,
commitment, responsibility, community, trust, fairness, security and
empathy.65
Across the world, touched and deeply influenced by this remarkable man,
legal scholars and responsible authorities are convinced that international
law has a role to play in securing sustainable development for present and
future generations. And it is well understood that jurists have an impor-
tant role to play. As Justice Gonthier himself once told a graduating class,
dans les moments difficiles o le succs manque lappel, rappelez-
vous cette autre parole du pote: Toutes choses / Proches ou lointai-
nes / Secrtement / Sont relies les unes aux autres / Et vous ne
pouvez toucher une fleur / Sans dranger une toile . Ceci malheu-
reusement pour le mieux et le pire. Mais dites-vous bien que vous
pouvez et devez faire une diffrence. Soyez gnreux, la vie vous le
rendra.66
The challenge is not to balance international conservation with urgent
development objectives. It is to secure sustainable justice globally in a
spirit of fraternity for the environment and its peoples. Justice Gonthiers
contributions to this worthy goal are recognized by many and will be fur-
ther appreciated as the full extent of his legacy becomes clear over time.
65 Gonthier, Sustainable Development, supra note 18 at 13.
66 Speech of Lhonorable M. Justice Charles D. Gonthier (2003) upon award of Honorary
the University of Ottawa, online: University of Ottawa
Doctorate at
SUSTAINABILITY, GLOBAL JUSTICE, AND THE LAW 355
To achieve it, all of humanitys collective wisdom, brilliance, respect, in-
tegrity, and openness will be needed, together with hope, compassion, and
intellectual courage. These were among the qualities that made Justice
Gonthier a remarkable man. They are the best of what it means to be part
of a society, to be part of a world, and to be human. And with them, we
carry on in his honour and in his memory.
