The role of international sustainable development law principles in enabling effective renewable energy policy – a South African perspective

Recent policy developments in South Africa propose to facilitate the promotion of sustainable development through the implementation of renewable energy, among others. In terms of existing energy policy in South-Africa, the interconnectivity of renewable energy and sustainable development is evident. Most notably, the White Paper on Renewable Energy of 2003 promotes increased access to affordable renewable energy in order to contribute to sustainable development. Moreover, the 2008 first review of the National Energy Efficiency Strategy of the Republic of SouthAfrica of 2005 states that in order for the country’s renewable energy policy to be considered sustainable, it needs to facilitate development in the social, economic and environmental spheres. Notwithstanding, attaining the goal of sustainable development depends on whether all its effecting principles are catered for in the policy developments. Accordingly, in order to ascertain whether South-African law and policy can successfully facilitate/enable sustainable development via the implementation of renewable energy, a specific methodology is proposed.

In order to assess whether the promotion of sustainable development as an objective of any given activity has been attained or not, one must ascertain if the policy regulating the activity conforms to the principles underlying the objective. In other words, law and policy promoting the facilitation of sustainable development via the implementation of renewable energy must give effect to the principles underlying sustainable development. Accordingly, in order to ascertain whether or not South African renewable energy law and policy can successfully enable sustainable development via the increased implementation of renewable energy, a specific methodology has to be used.
Sustainable development law (SDL) has been described as a body of international legal principles which address the areas of intersection between international economic law, international environmental law and international social law. 13 SDL revolves around cooperative international efforts to identify and distil general substantive and procedural principles. 14 A prime example is the seven principles of international law related to sustainable development as identified by the International

Law Association Committee on Legal Aspects, contained in its 2002 New Delhi
Declaration. 15 It is the opinion of the author that the New Delhi principles represent an encompassing, albeit not exhaustive SDL framework within which renewable energy law and policy should be formulated and implemented to effectively promote sustainable development. Accordingly, the New Delhi principles will be used as the basis against which to test existing South-African renewable energy law and policy in order to establish if it gives effect to the objective of the promotion of sustainable development.
This principled qualitative policy assessment should serve as a sound basis for establishing a common, yet flexible ground for valid solutions to challenges surrounding sustainable renewable energy law and policy -the assumption being, that a principled assessment of national law will ensure a holistic, qualitative debate on how certain elements of a policy are designed to support sustainable development. 16 The assessment envisaged by this article should by no means be construed as a mere "check list" by which to judge to what extent South African law and policy contain the New Delhi principlesalthough this will be touched upon.
The principled assessment of South African renewable energy law and policy should rather have the effect of ascertaining if the law and policy are capable of facilitating sustainable development.
In so doing, this paper will engage in a brief discussion of the SDL principles contained in the New Delhi Declaration. This will be followed by an analysis of specific South African renewable energy law and policy documents as well as the national sustainable development framework and strategy. A conclusion will then be reached regarding the extent to which each of the New Delhi principles is evident in South African law and policy and whether or not the law and policy serve to promote sustainable development. From the outset it should be made clear that while the author does take cognisance of relevant contemporary international legal developments' contribution to the ongoing sustainable development debate, 18 the purview and purpose of this article do not include an analysis of their provisions.
Emerging mainly from ″soft law instruments″ such as declarations, SDL principles have a certain persuasive force, 19 whilst showing a normative character in international law in the sense that they create obligations or rights for the states that are bound by them. 20 SDL principles may also prove helpful in resolving conflicts related to sustainable development and support the balanced integration of laws and policies at the intersection of international environmental, social and economic law. 21 In this regard, the New Delhi Declaration identifies seven SDL principles distilled from several global-scale processes spanning four decades. 22 Taking into 17 ILA Resolution 3/2002. The term "New Delhi principles" will also be used when referring to the principles of international law related to sustainable development contained in the New Delhi Declaration. 18 Most notably, the statements and declarations emerging from the UN Climate Change Conference of Parties (COP), which include among others: The Bali Action Plan (UNFCCC, Decision 1/CP.13); the Copenhagen Accord (UNFCCC, Decision 2/CP.15) and the Cancun Agreements (UNFCCC, Decision 1/CP.16). These instruments focus predominantly on the role of the increased use of renewable energy in mitigating the effects of climate changeone of the major developmental challenges currently faced by humankind. of natural resources should be seen to entail using resources in such as fashion as to meet the needs of the present without compromising the ability of future generations to meet their own needs. 30 The challenges connected with defining this principle should, however, not negate the value of the principle itself, which is to encourage states to seek appropriate regulatory instruments and practices regarding the "sustainable management" 31 of the use of natural resources. is essential to the fulfilment of the goal of sustainable development. 36 The ICESR, on the other hand, defines poverty as "the lack of basic capabilities to live in dignity" 37 and states that rights connected to the principle of poverty eradication should refer to basic human rights. 38

The principle of equity and the eradication of poverty
With reference to the principle of equity, it is common ground that the resources of the earth belong to all generations. Being a principle central to the attainment of sustainable development, equity should be seen to include both inter-generational equity 39 and intra-generational equity. 40 This principle, which is closely related to the sustainable use of natural resources, demands that, while the present generation has a right to use and enjoy the resources of the earth, it is under an obligation to take into account the long-term impact of its activities and to sustain the resource base and the global environment for the benefit of future generations of humankind.

The principle of common but differentiated responsibilities
The principle of common but differentiated responsibilities evolved from the notion of the common heritage of mankind and is a particular manifestation of the general 35 Poverty has various manifestations, including a lack of income and productive resources sufficient to ensure sustainable livelihoods; hunger and malnutrition; ill health; limited or lack of access to education and other basic services; increased morbidity and mortality from illness; homelessness and inadequate housing; unsafe environments; and social discrimination and exclusion. It is also characterised by a lack of participation in decision-making and in civil, social and cultural life. Differentiated responsibility therefore aims to promote substantive equality among developing and developed States, rather than to impose mere formal equality.
The practical implementation of the principle as a whole should have the following consequence, namely that States will have different environmental standards imposed upon them in order that they may exercise the common responsibility of protecting shared environmental resources.

The principle of the precautionary approach to human health, natural resources and ecosystems 47
In terms of the New Delhi Declaration, the precautionary principle entails that the agent of activities which might lead to significant, serious or irreversible harm is obliged to take measures to prevent this damage even if there is a lack of full scientific certainty as to the existence and severity of the risk. 48 The precautionary principle is therefore a response to an important problem in decision-making, namely the absence of complete scientific information concerning the environmental consequences of a particular activity. 49 It could therefore also be said that the principle of precaution is based on the premise that harm may be prevented before it occurs by means of governmental decision-making based on scientific data, and the notion that the precautionary measures taken should be in proportion with the potential damage. 50 The precautionary principle contained in the New Delhi Declaration builds upon Principle 15 of the Rio Declaration, which states that where serious or irreversible damage threatens, lack of full scientific certainty shall not be used as a reason for postponing the taking of cost-effective measures to prevent environmental degradation. 51 While the Rio Declaration is widely considered an authoritative reference point for the precautionary principle in international law, it seems to focus on the prevention of environmental degradation, omitting reference to social and economic degradation. The broader formulation of the precautionary 47 Hereinafter the term "precautionary principle" will be used when referring to the principle of the precautionary approach to human health, natural resources and ecosystems. principle contained in the New Delhi Declaration, however, moves away from the traditional environmentally based formulation towards a formulation focused on the environment as well as human health. In terms of the New Delhi Declaration, a precautionary approach with regard to human health, environmental protection and the sustainable utilization of natural resources should include accountability for the harm caused, planning based on clear criteria and well defined goals, and the consideration in an environmental impact assessment of all possible means to prevent harm from occurring. 52

The principle of public participation and access to information and justice
The participation of the public 53 in policy formulation is essential to sustainable development and good governance as it is a condition of responsive, transparent and accountable governance. This principle enjoys substantial support in various international legal instruments 54 and finds its basis in the fundamental human right 55 to hold and express opinions and to seek, receive and impart ideas. In order to 52 Cordonier Segger and Khalfan Sustainable Development Law Part 4 3. 53 The public, as understood in the context of this principle, is a community of people and should not be seen as an explicit reference to the public of a certain State, nor of people possessing citizenship rights to a specific place. The public is differentiated from the State in that people can be State actors and operate within the interests of that State, while at the same time belonging to the public, where they can freely express their own ideas. See Hepburn and Khalfan CISDL Working Draft Paper 3. In the context of sustainable development, the "public" should therefore be seen to include individuals, trade unions, non-governmental organisations, business organisations and other civil society organisations. 54 In terms of article 12 of the International Covenant on Economic, Social and Cultural Rights of 1966 (which entered into force in 1976), every citizen has the right to participate in "the conduct of public affairs, directly or through freely chosen representatives...". The Covenant also illustrates the importance of access to information, by stating in article 13 that "education shall enable all persons to participate effectively in a free society". Reference to this principle can also be found in the preamble of the Stockholm Declaration; article 1 of the UN Declaration on the Right to Development; and principles 5, 10, 19 -21 of the Rio Declaration. 55 The UN Universal Declaration of Human Rights of 1948 refers in article 21 to everyone's "right to take part in the government of his country, directly or through freely chosen representatives", the "right of equal access to public service in his country" and that "the will of the people shall be the basis of the authority of government". facilitate development of educated and informed opinions, access to appropriate, comprehensible and timely information is critical. 56 Taking this definition into consideration the principle of public participation and access to information and justice can be seen as consisting of three key elements.
In the first instance, public participation is recognised as a human right of expression. Viewed as such, it is especially significant for previously disadvantaged groups such as women to be accorded the opportunity to participate in official socioeconomic development, decision-making processes and activities that directly affect their lives and well-being. 57 The second element is related to the public's ability to formulate and hold informed opinions and expressions. In order to do so the public must be provided with, or at least have access to adequate information concerning the decisions and activities of governments and commerce. This applies to information specifically relating to the sustainable use of natural resources and the protection of the environment, with due regard to the financial burdens on those seeking the information. 58 The third and final aspect of this principle is access to justice, which refers to instances where rights or entitlements have allegedly been violated. 59 Access to justice should have the effect of ensuring that violated parties have access to judicial or administrative relief.
In the context of national law, public participation and access to information hinges upon ensuring that all persons have access to appropriate, comprehensible and timely information held by governments on economic and social policies regarding the sustainable use of natural resources and the protection of the environment.
Furthermore, access to justice would entail having access to appropriate judicial or administrative relief where parties have been denied their right to participation or access to information.

2.6
The principle of good governance The principle of good governance is perceived as a normative principle of administrative law which obliges the State to perform its functions in a manner that promotes the values of efficiency, non-corruptibility, and responsiveness to civil society. 60 While government is not obliged to substantively deliver any public goods, it must ensure that the processes for the identification and delivery of such goods are concrete in terms of (i) being responsive to public demands; (ii) being transparent in the allocation of resources; and (iii) being equitable in the distribution of goods. 61 The principles of due process; observe the rule of law and human rights; and implement an internationally acceptable public procurement approach. 66 At the domestic level, States commit themselves to sound environmental, social and economic policies, democratic institutions responsive to the needs of the people, the rule of law, anti-corruption measures, gender equality and an enabling environment. 67 This principle therefore binds States to democratic and transparent decision-making, anti-corruption, respect for the rule of law and human rights, and is closely related to the principle of participation, access to information and justice.

The principle of integration and interrelationship in relation to human rights and social, economic and environmental objectives 68
The notions of integration and interrelationship lie at the very core of the concept of sustainable development and could therefore be described as being fundamental to its existence. 69 This is especially evident when one considers the definition of Project 72 the International Court of Justice (ICJ) highlights the importance of the integration principle, stating in its judgment that the ″need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development.″ 73 It could be argued that the integration principle should accordingly be labelled as a "core principle" of sustainable development placing it in the same category as the application of equity between States, the consideration of the needs of future generations, and the non-exhaustion of renewable energy sources. 74 Taking all of the aforementioned into consideration, the definition of the integration principle should be seen to consist of two main components, namely the existence of linkages between the various spheres of international law bearing on sustainable development and the integration of the norms and principles emanating from these spheres. In general terms, the integration principle implies the need for States to take into account the interdependence of economic, environmental, social and human rights issues and furthermore entails the necessity of reconciling, accommodating and harmonising the priorities, concerns and norms emanating from each area. 75 In order to ascertain the extent to which South Africa integrates the New Delhi principles in its renewable energy law and policy, the following methodology will be applied. The background to the historical development of the South African renewable energy policy will be discussed first, and South African law and policy will be analysed afterwards with specific reference to the principles contained therein.
These principles will then be categorized in terms of the seven principles contained in the New Delhi Declaration in order to reach a conclusion on whether or not South African renewable energy law and policy facilitate sustainable development. 72 1997ICJ Rep. 78 140. 73 1997 Sands distinguishes between core principles of sustainable development and principles drawn from other areas of international law. He identifies the core principles as principles that seem to be inherent in the concept of sustainable development and that point to the limits that must be placed on the use of natural resources while principles drawn from other areas of international law are intended to provide assistance in achieving sustainable development.

White Paper on the Energy Policy of the Republic of South Africa of 1998
The  The principle of equity 99 entails that equitable access to basic services (to meet people's needs and ensure their wellbeing) must be ensured, while protecting future generations' ability to enjoy the same rights. This principle once again relates to the international sustainable development principle of equity and the eradication of poverty. 100 The principle of global and international cooperation and responsibilities 101 has the effect of ensuring that government considers relevant regional as well as international policy principles when formulating national renewable energy policy.
This principle relates to the principle of common but differentiated responsibilities 102 in ensuring that regional responsibilities are taken into account, and places emphasis In terms of the principle guiding the allocation of functions, 104 government must apply the provisions of the Constitution regarding the duties of the different spheres and institutions of governmentthis, therefore, relates to the principle of good governance 105 in that it allocates duties to specific institutions and therefore creates accountability.
In the final instance, participation as a policy principle 106 demands that government

National Energy Act 34 of 2008
In its preamble, the National Energy Act 34 of 2008 (hereinafter referred to as Act 34 of 2008) states that increased generation and consumption of renewable energy will be an important contributing factor towards attaining the objective of promoting The importance lies in ensuring a diverse energy mix that is not only affordable and sustainable, but also contributes towards economic growth and poverty alleviation. See section 2 of the National Energy Act 34 of 2008. 110 These include: energy supply; transformation; transport; storage; and demand for energy.
Section 6(2) of Act 34 of 2008. 111 The factors to be taken into consideration in drafting the integrated energy plan include: security of supply; economically available energy sources; affordability; universal accessibility and free basic electricity; social equity; employment; the environment; international commitments; consumer protection and contribution of energy supply to socio-economic development. Section 6(2)(a) -(j) of Act 34 of 2008. 112 Section 6(4)(a) -(f) of Act 34 of 2008. 113 Section 6(7)(a) -(b) of the National Energy Act, 34 of 2008. 114 Principle 2 of the New Delhi Declaration. See paragraph 2.2 above. 115 Section 2(f) of Act 34 of 2008. related to human health, safety and the environment. 116 Act 34 of 2008 further states that any data or information collected for the purposes of drafting an integrated energy plan must be made available to the public in terms of the provisions of the Promotion of Access to Information Act and the Statistics Act 6 of 1999. 117 With reference to these provisions, the ISDL principle of public participation and access to information and justice apply, 118 while the provisions related to minimising the negative impacts related to energy carriers pertain to the principle of the precautionary approach to human health, natural resources and ecosystems. 119 The principles to be applied in formulating the integrated resource plan envisaged by Act 34 of 2008 also relate closely to the New Delhi principles. In the first instance, the requirement that the South African government must ensure the optimal use of indigenous and regional energy resources 120 relates directly to the duty resting on States to ensure the sustainable use of natural resources. 121 It might be argued that the reference to regional resources in this section could be seen to infer that the

South African legal developments relating to sustainable development
Recent legal developments surrounding the formulation of a national strategy for sustainable development have shown the inclusion of SDL principles in resulting policy documents. This section will accordingly deal with contemporary national legal developments related to sustainable development and specifically focus on the principles underpinning the concept of sustainable development in the South African context. A slightly different methodology will be applied in this section, in as much as the principles contained in the national measures will be compared to the New Delhi principles in order to assess to what extent the national SDL principles resemble the international SDL principles.

The National Framework for Sustainable Development in South Africa, 2008 and the National Strategy and Action Plan for Sustainable Development, 2010 -2014
The mandate contained in the provisions of the JPI 128 led to the adoption of the 142 Principle 3 of the New Delhi Declaration. See paragraph 2.3 above. The principle of common but differentiated responsibility is also reflected clearly in the wording of the NFSD's vision for national sustainable development, in as much as it refers to the importance of national, regional and global collaboration. See note 134 above.

Conclusion
The correlation between the advantages connected with the implementation of renewable energy and the promotion of sustainable development is universally recognised. 149 Following this global trend, various South African regulatory measures draw the link between increasing access to affordable renewable energy and development in the social, economic and environmental spheres, in other words sustainable development. 150 The effective regulation of the implementation of renewable energy in South Africa necessitates the formulation of similarly effective law and policy focused on sustainable development. 151 It is argued that, in order to effect sustainable development, the relevant law and policy should conform to the principles contained in the international sustainable development law enunciated in the New Delhi Declaration. 152 The New Delhi Declaration contains seven principles of international law which support the balanced integration of law and policy related to sustainable development. 153 These principles should therefore be used as the starting point in a principled assessment of the efficacy of the formulation process and the subsequent national renewable energy law and policy designed to promote sustainable development. 154 In assessing the extent to which the South African renewable energy policy gives effect to the principles contained in the New Delhi Declaration and sustainable development as the overarching objective of the policy, the formulation process was discussed, as well as the resulting regulatory measures. 155 The discussion of the South African law and policy relating to renewable energy and the national sustainable development legal developments shows that the regulatory measures comprising the law and policy contain and/or refer, either directly or indirectly, to all seven of the New Delhi principles. It was, however, never the intention of the author to use principled criteria to "make best policy the enemy of the