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Global Justice in the Anthropocene

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Abstract

Scientists believe the world has entered a new geological epoch in which human economic activity is the primary driver of global environmental change. Known as the Anthropocene, this epoch is characterized by human domination and disruption of Earth system processes essential to the planet’s self-regulating capacity. The environmental problems of the Anthropocene are inextricably intertwined with patterns of trade, finance, investment, and production that have created an enormous and growing economic gap between and within affluent and poor countries. These divisions have often paralyzed international law-making, resulting in deadlocks in environmental treaty negotiations and agreements characterized by ambiguity, lack of ambition, and inadequate compliance and enforcement mechanisms. International environmental law is a field in crisis because the problems it currently confronts are deeply embedded in the existing economic order and cannot be adequately addressed by simply tinkering on the margins. As the planet’s ecosystems approach irreversible tipping points, it is essential to frame the ecological and economic crises of our time in the language of justice and morality. This chapter deploys the discourse of environmental justice to describe the challenges of the Anthropocene and to propose pathways toward a more just and sustainable economic order.
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Chapter 10: Global Justice in the Anthropocene
ENVIRONMENTAL LAW AND GOVERNANCE FOR THE ANTHROPOCENE (Louis Kotzé, ed.)
Hart Publishing, 2017
Carmen G. Gonzalez*
Scientists believe the world has entered a new geological epoch in which human
economic activity is the primary driver of global environmental change. Known as the
Anthropocene, this epoch is characterized by human domination and disruption of Earth
system processes essential to the planet’s self-regulating capacity.
1
Climate change,
deforestation, species extinction, and other ecological transformations have exceeded
safe biophysical thresholds, rendering the planet increasingly dangerous, unpredictable,
unstable, and incompatible with human flourishing.
2
The environmental crises of the Anthropocene are deeply connected to economic
policies that have enabled the world’s most affluent populations to consume a
disproportionate share of the planet’s resources while relegating vast swathes of
humanity to abject poverty.
3
20 percent of the world’s population consumes roughly 80
percent of the planet’s resources
4
and owns approximately 95 percent of the planet’s
wealth.
5
In 2015, just 62 individuals possessed the same wealth as the planet’s poorest
*Professor of Law, Seattle University School of Law. This chapter has been adapted from Carmen G. Gonzalez,
‘Bridging the North-South Divide in the Anthropocene,’ (2015) 32 Pace Environmental Law Review 407.
1
See Paul J Crutzen, ‘Geology Of Mankind – The Anthropocene’ (2002) 415 Nature 23.
2
See generally Will Steffen et al, ‘Planetary Boundaries: Guiding Human Development on a Changing Planet’
(2015) 347 Science 1259855.
3
See Christophe Bonneuil and Jean-Baptiste Fressoz, The Shock of the Anthropocene (Verso 2015) 242-252
(describing the massive extraction by Western industrial countries of the mineral and renewable resources of the
Third World to fuel the post-1945 period of rapid economic growth known as the “Great Acceleration”); Oxfam,
An Economy for the 1%: How Privilege and Power in the Economy Drive Extreme Inequality and How This Can
Be Stopped,’ (January 2016), https://www.oxfam.org/en/research/economy-1 (discussing the economic policies of
the past four decades that have exacerbated economic inequality between and within nations and allowed basic
human needs to go unmet).
4
See William E Rees and Laura Westra, ‘When Consumption Does Violence: Can There Be Sustainability and
Environmental Justice in a Resource-Limited World?’ in Julian Agyeman, Robert D Bullard and Bob Evans (eds),
Just Sustainabilities: Development in an Unequal World (MIT Press 2003) 110-112; World Bank, 2002 World
Development Indicators (2008) 4, http://data.worldbank.org/sites/default/files/wdi08.pdf.
5
See Deborah Hardoon, ‘Wealth: Having It All And Wanting More’ (Oxfam International 2016) 2
www.oxfam.org/en/research/wealth-having-it-all-and-wanting-more .
2
3.6 billion.
6
As inequality grows and the environment deteriorates, billions of people
struggle to satisfy basic human needs. Nearly 750 million people are unable to obtain
clean drinking water, and 2.5 billion lack access to sanitation.
7
Approximately 800
million people suffer from chronic undernourishment because they lack the resources to
grow or purchase sufficient food to satisfy their dietary energy needs.
8
Another 2.8
billion people lack modern energy for cooking, heating, lighting, transportation or basic
mechanical power.
9
International environmental law has generally failed to halt or reverse the rapid
deterioration of the planet’s life support systems.
10
Conflicts between affluent and poor
countries (the North-South divide) grounded in colonial and post-colonial political and
economic relations have frequently paralyzed international law-making, resulting in
deadlocks in environmental treaty negotiations and agreements marred by ambiguity,
lack of ambition, and inadequate compliance and enforcement mechanisms.
11
Although
more than 700 multilateral agreements have been adopted since 1857, the rate of
anthropogenic environmental change continues to accelerate.
12
In almost every area of
environmental concern, North-South negotiations have featured a deep and growing
chasm between the call by some Northern states for collective action to protect the
environment and the South’s demand for social and economic justice.
13
Of course, the North-South divide is not the only obstacle to international
environmental cooperation. Conflicts between powerful Southern countries (such as
6
See Oxfam (n3) 2.
7
See World Health Organization (WHO)/ United Nations Children's Fund (UNICEF), Progress on Drinking Water
and Sanitation (WHO/UNICEF 2014) www.who.int/water_sanitation_health/publications/2014/jmp-report/en/.
8
See United Nations Food and Agriculture Organization (FAO), The State of Food Insecurity in the World (SOFI)
2015: Meeting the 2015 International Hunger Targets: Taking Stock of Uneven Progress (FAO, 2015) 4,
http://www.fao.org/publications/card/en/c/c2cda20d-ebeb-4467-8a94-038087fe0f6e/
9
See International Energy Agency, World Energy Outlook 2012 (Organization for Economic Co-operation and
Development (OECD) 2012) http://www.iea.org/publications/freepublications/publication/WEO2012_free.pdf.
10
See Jonathan C Carlson, Geoffrey Palmer and Burns Weston, International Environmental Law and World Order:
A Problem-Oriented Coursebook (West Academic Press 2012) 293.
11
See generally, Sumudu Atapattu and Carmen G Gonzalez, ‘The North-South Divide in International
Environmental Law: Framing the Issues,’ in Shawkat Alam, Sumudu Atapattu, Carmen G Gonzalez, and Jona
Razzaque International Environmental Law and the Global South (Cambridge University Press 2015) 1-20.
12
See Rakhyun E. Kim and Klaus Bosselman, ‘International Environmental Law in the Anthropocene: Towards a
Purposive System of Multilateral Environmental Agreements,’ (2013) 2 Transnational Environmental Law 285,
285-286.
13
See Usha Natarajan and Kishan Khoday, ‘Locating Nature: Making and Unmaking International Law’ (2014) 27
Leiden Journal of International Law 573, 579.
3
China and India) and more ecologically vulnerable nations (such as the small island
states) have also compromised international environmental negotiations, most notably
in the case of climate change.
14
In addition, the United States and the European Union
have clashed over climate policy and over the regulation of toxic chemicals and
genetically modified organisms.
15
In order to bridge the North-South divide and respond to the ecological crises of
the Anthropocene, international environmental law must be normatively grounded in
respect for nature and in the quest for social, economic, and environmental justice
within as well as between countries. It must also challenge the dominant growth-
oriented economic paradigm rather than merely mitigating its excesses.
This chapter proceeds in four parts. Part I examines the ways in which
international law has historically engaged with nature and with the peoples of the global
South in order to identify the policies and practices that subordinate the South and
degrade the planet’s ecosystems. Part II analyzes the role of international economic law
in perpetuating unsustainable and inequitable patterns of production and consumption.
Part III argues that sustainable development, a central orientation for international
environmental law and politics, has failed to contest the dominant, growth-oriented
economic paradigm at the core of the ecological and socio-economic crisis. Part IV
discusses the way forward.
I. The Colonial and Post-Colonial Origins of the Anthropocene
The origins of the Anthropocene are contested. Some scholars argue that the
Anthropocene began when humans first engaged in large-scale agricultural production
that transformed the planet’s landscapes and emitted sufficient greenhouse gases to
14
See generally Sander Happaerts and Hans Bruyninckx, ‘Rising Powers in Global Climate Governance:
Negotiating in the New World Order’ (2013) Working Paper No. 124 Leuven Centre for Global Governance
Studies.
15
David E Adelman, ‘A Cautiously Optimistic Appraisal Of Trends In Toxics Regulation’ (2010) 32 Washington
University Journal of Law and Policy 377; Jutta Brunnee, ‘Europe, The United States, And The Global Climate
Regime: All Together Now?’ (2008) 24 Journal of Land Use & Environmental Law 1; Carmen G Gonzalez,
‘Genetically Modified Organisms and Justice: The International Environmental Justice Implications of
Biotechnology’ (2007) 19 Georgetown International Environmental Law Review 583.
4
influence the planet’s climatic trajectory.
16
Others identify the Industrial Revolution and
the post-World War II decades of rapid economic growth as the first and second stages
of the Anthropocene.
17
Regardless of the outcome of these debates, the Anthropocene
did not materialize fully formed during any particular historic moment, but emerged
gradually “from a long historical process of economic exploitation of human beings and
the world, going back to the sixteenth century and making industrialization possible.
18
The Industrial Revolution was fueled by colonialism, which provided the natural
resources to feed European workers and machines and the markets for European
industrial output.
19
The colonial encounter devastated the indigenous civilizations of
Asia, Africa and the Americas, and enabled Europeans to appropriate and exploit their
lands, labor and natural resources through slavery, conquest, and indentured
servitude.
20
Colonialism converted self-reliant subsistence economies into outposts of
Europe that exported agricultural products, minerals, and timber, and imported
manufactured goods for the benefits of a few people at the expense of many.
21
Mining,
logging and cash-crop production destroyed forests, dispossessed local communities,
and dramatically altered the ecosystems of the colonized territories.
22
The transatlantic
slave generated the revenues for industrial development by commodifying human
beings, and produced a legacy of social and economic exclusion that lingers to the
present day.
23
International law justified the colonial enterprise by constructing native
populations as racially and culturally inferior and by asserting a moral duty to “civilize”
16
See generally William F. Ruddiman, ‘The Anthropogenic Greenhouse Era Began Thousands of Years Ago’
(2003) 61 Climatic Change 261; William F. Ruddiman, ‘How Did Humans First Alter Global Climate?’ (2005) 292
Scientific American 46.
17
See Bonneuil and Fressoz (n.3) 50-51.
18
Ibid at 228-229.
19
Ibid at 231-235
20
See Clive Ponting, A Green History of the World (Sinclair-Stevenson 1991) 130-36.
21
See ibid 194-212.
22
See Kate Miles, ‘International Investment Law: Origins, Imperialism and Conceptualizing the Environment’
(2010) 21 Colorado Journal of International Environmental Law and Policy 1, 21-22.
23
See Hilary McD Beckles, Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide,
(University of the West Indies 2013) 82-108; Bonneuil and Fressoz (n.3) 230-232 (arguing that the transatlantic
slave trade sparked the Industrial Revolution); Fernne Brennan and John Packer (eds), Colonialism, Slavery,
Reparations and Trade: Remedying the Past? (Routledge, 2012) (explaining the ongoing impacts of the slave trade
and arguing for reparations).
5
them though compulsory assimilation to European ways.
24
Influenced by Enlightenment
scholars and philosophers, international law decreed the domination of nature and the
development of industry as the key obligations of civilized states.
25
Societies that lived
in harmony with nature were pronounced “uncivilized” and in need of “modernization”
and “development.”
26
Colonialism universalized European notions of nature as a commodity for human
exploitation while creating a global economy that systematically subordinated the global
South. Even after political independence, post-colonial states in Asia, Africa and Latin
America were integrated into the Northern-dominated world economy as exporters of
primary commodities and importers of manufactured products.
27
Because the terms of
trade consistently favored manufactured goods over primary products, the nations of the
global South were required to export increasing amounts of their output in order to
acquire the same amount of manufactured goods.
28
Efforts to boost national earnings
by increasing the production of minerals, timber and agricultural products generally
glutted global markets with primary commodities and depressed prices, thereby
reducing Southern export earnings, exacerbating Southern poverty, and reinforcing the
North-South economic divide.
29
The North’s control over a large part of the world’s resources from the colonial
era to the present fueled the North’s industrial development and enabled the North to
maintain levels of consumption far beyond the limits of its own natural resource base.
30
As historian Clive Ponting observes, ‘[m]uch of the price of that achievement was paid
by the population of the Third World in the form of exploitation, poverty, and human
suffering.
31
24
See generally Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge
University Press 2005).
25
See Alex Geisinger, ‘Sustainable Development and the Domination of Nature: Spreading the Seed of the Western
Ideology of Nature’ (1999) 27 Boston College Environmental Affairs Law Review 43, 52-58; Natarajan and Koday
(n 13) 586-87.
26
See Vassos Argyrou, The Logic of Environmentalism: Anthropology, Ecology, and Postcoloniality (Berghahn
Books 2005) 7-26.
27
See Ponting (n 20) 213-14.
28
See James M Cypher, The Process of Economic Development (Routledge 2014) 198-212.
29
See Ponting (n 20) 223.
30
See ibid.
31
Ibid.
6
The South’s economic dependency on export production enabled the North to
exploit Southern resources at prices that did not reflect the social and environmental
costs of production.
32
Far from producing prosperity, export-led development strategies
depleted the South’s natural resources, harmed human health, and reinforced social
and economic inequality by imposing disparate environmental burdens on the
communities targeted for petroleum extraction, mining, and other forms of resource
exploitation.
33
Much of the environmental degradation in the global South has been
caused by export-oriented production to satisfy the needs and desires of Northern
consumers, rather than local consumption.
34
II. International Economic Law and the North-South Divide
The legal architecture of contemporary globalization was developed in the
aftermath of the Second World War when much of the global South remained under
colonial rule. International economic law exacerbated the North-South divide and
sparked the post-1945 period of unprecedented neo-liberal economic growth and
environmental devastation known as the Great Acceleration.
35
This section discusses
the ways that both investment law and trade law exacerbated the North-South divide
and contributed to the Great Acceleration.
Modern investment law inherited from the colonial era an instrumentalist view of
the environment as an object for Northern exploitation, with no corresponding duty to
protect the health of local ecosystems, enhance the well-being of local communities, or
advance the goals and interests of the host state.
36
Thus, contemporary bilateral
investment treaties (BITs) and regional investment agreements seek to provide foreign
32
See Joan Martinez-Alier, The Environmentalism of the Poor: A Study of Ecological Conflicts and Valuation
(Edward Elgar Publishing 2003) 214.
33
Rebecca M Bratspies, ‘Assuming Away the Problem? The Vexing Relationship Between International Trade and
Environmental Protection’ in Cecilia M Bailliet (ed), Non-State Actors, Soft Law, And Protective Regimes: From the
Margins (Cambridge University Press 2012) 228-230, 239-240.
34
See Rees and Westra (n 4) 110.
35
See Bonneuil and Fressoz (n 3) 242-252. Some scholars have argued that the Great Acceleration should be
regarded as the beginning of the Anthropocene. See generally Will Steffen, et al., The Trajectory of the
Anthropocene: The Great Acceleration,’ The Anthropocene Review Published online16 January 2015 [DOI:
10.1177/2053019614564785]
36
See Miles (n 22) 23-24
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investors with unfettered access to natural resources by restricting the ability of host
states to adopt health and safety, environmental, labor, and human rights standards.
37
If these social and environmental standards impair the economic value of the
investment, they may be challenged as indirect expropriations or breaches of fair and
equitable treatment standards.
38
Designed to maintain a stable legal and business
environment for foreign investors, these one-sided agreements generally impose no
human rights and environmental obligations on foreign investors and provide no
mechanism for holding corporations accountable for the harms to human health and the
environment that their activities cause in the host state.
39
Indeed, as one scholar has
noted, investment law may actually impede climate change adaptation in the global
South by requiring states to compensate foreign investors when measures enacted to
address changing and unstable environmental conditions (such as water shortages
produced by drought) depress the value of the foreign investment.
40
While international investment law provided the global North with the raw
materials from the global South that fed the Great Acceleration, the 1947 General
Agreement on Tariffs of Trade (1947 GATT) facilitated the global trade flows that
supplied markets for the North’s petroleum-intensive manufactured goods and
agricultural products.
41
The 1947 GATT disproportionately benefited the global North by
requiring all nations to reduce tariffs on manufactured goods (produced primarily by
Northern industries) while allowing the North to maintain agricultural subsidies and
import barriers that disfavored Southern agricultural producers.
42
When cheap oil and
generous government subsidies produced a glut of agricultural products in Northern
markets, Northern agribusiness sold the surplus food in the global South at prices far
below the local cost of production, undermining the livelihoods of small farmers and
provoking an exodus to urban slums.
43
37
See ibid 40-44.
38
See ibid 40.
39
See ibid 44.
40
See Shalanda Baker, ‘Climate Change and International Economic Law’ (2016) 43 Ecology Law Quarterly 53, 93.
41
See Bonneuil and Fressoz (n3) 244.
42
See Carmen G Gonzalez, ‘Trade Liberalization, Food Security and the Environment: The Neoliberal Threat to
Sustainable Rural Development’ (2004) 14 Transnational Law & Contemporary Problems 419, 456-7.
43
See Bonneuil and Fressoz (n3) 244; Carmen G Gonzalez, ‘Food Justice: An Environmental Justice Critique of the
Global Food System,’ in International Environmental Law and the Global South (n 11 ) 408.
8
In the decades following World War II, a coalition of Southern states (known as
the Group of 77) attempted to reform the international economic system through a
series of resolutions at the United Nations General Assembly, where the South held a
numerical majority.
44
The Group of 77 sought to achieve a more equitable international
economic order by advancing the doctrine of permanent sovereignty over natural
resources and the right to nationalize the Northern companies exploiting the South’s
natural resources.
45
They mobilized to achieve a New International Economic Order
(NIEO) that would enhance Southern participation in global governance, provide debt
relief, secure preferential access to Northern markets, and stabilize export prices for
primary commodities.
46
The Group of 77 also attempted to mitigate the economic legacy
of colonialism and promote economic prosperity through differential treatment in
international economic law (special and differential treatment) and international
environmental law (common but differentiated responsibility).
47
The debt crisis of the 1980s marked the demise of the NIEO and the ascendancy
of the free market economic model known as the Washington Consensus.
48
In
exchange for debt repayment assistance, the International Monetary Fund (IMF) and
the World Bank imposed on heavily indebted Southern nations a series of neoliberal
economic reforms that included trade liberalization, deregulation, privatization,
elimination of social safety nets, and the intensification of export production to service
the foreign debt.
49
The export-led economic policies mandated by the IMF and the World Bank
exacerbated poverty and inequality; reinforced the South’s environmentally and
economically disadvantageous dependence on the export of primary commodities; and
enabled Northern transnational corporations to dominate many of the newly privatized
44
See Lavanya Rajamani, Differential Treatment in International Environmental Law (Oxford University Press
2006) 17-18.
45
See Ruth E Gordon and Jon H Sylvester, ‘Deconstructing Development’ (2004) 22 Wisconsin International Law
Journal 1, 53-56.
46
See Rajamani (n 44) 17-18; Gordon and Sylvester (n 45) 56-68; Ruth Gordon, ‘The Dawn of a New, New
International Economic Order?’ (2009) 72 Law and Contemporary Problems 131, 142-45.
47
See Carmen G Gonzalez, ‘Environmental Justice and International Environmental Law’ in
Shawkat Alam, Md Jahid Hossain Bhuiyan, Tareq M.R. Chowdhury, and Erika J. Techera (eds), , Routledge
Handbook of International Environmental Law (Routledge 2013) 87-92.
48
See Gordon (n 46) 145-50.
49
See ibid; Gonzalez (n 47) 82.
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economic sectors.
50
Trade liberalization destroyed rural livelihoods in the global South
by placing small farmers in direct competition with highly subsidized Northern
agribusiness.
51
The elimination of social safety nets exacerbated the misery of the poor,
and resulted in food riots (known as “IMF riots”) in many Southern countries.
52
Under
pressure to repay the foreign debt, Southern countries “mined” natural resources to
maximize export earnings rather than managing them in a sustainable manner.
53
Desperate for foreign investment, impoverished Southern nations became magnets for
polluting industry and dumping grounds for hazardous wastes from the global North.
54
The World Trade Organization (WTO) Agreements that succeeded the 1947
GATT failed to dismantle the import barriers of greatest concern to the global South
(particularly in the areas of agriculture, clothing and textiles) while imposing new and
onerous obligations in the areas of intellectual property, investment, and services.
55
They also required Southern countries to curtail the import barriers that protected
nascent Southern industries from more technologically advanced Northern competitors,
and restricted the right of Southern countries to deploy tariffs and subsidies to
strategically promote dynamic new industries (a practice known as industrial policy).
56
Economic history reveals that the United States, Germany, Japan, the United Kingdom,
Taiwan, and South Korea achieved economic prosperity through protectionism
(including industrial policy).
57
By depriving Southern nations of the tools used by the
global North and by certain middle-income Southern states to diversify and industrialize
their economies while imposing new requirements to protect the rights of foreign
investors and intellectual property holders, international economic law has
50
See Gonzalez (n 47) 82.
51
See Gonzalez (n 42) 466-467,
52
See ibid 465-466.
53
See Bratspies (n 33) 239.
54
See generally David N Pellow, Resisting Global Toxics: Transnational Movements for Environmental Justice
(MIT Press 2007).
55
See Frank J Garcia, ‘Beyond Special and Differential Treatment’ (2004) 27 Boston College International and
Comparative Law Review 291, 297-298.
56
See Yong-Shik Lee, Reclaiming Development in the World Trading System (Cambridge University Press 2006)
41-42.
57
See generally Ha-Joon Chang, Bad Samaritans: The Myth of Free Trade and the Secret History of Capitalism
(Bloomsbury Publishing 2008); Ha-Joon Chang, Kicking Away the Ladder: Development Strategy in Historical
Perspective (Anthem Press 2002); Alice H Amsden, Escape from Empire: The Developing World’s Journey through
Heaven and Hell (MIT Press 2009); Erik S Reinert, How Rich Countries Got Rich...and Why Poor Countries Stay
Poor (PublicAffairs 2008); Alice H Amsden, The Rise of ‘the Rest’: Challenges to the West from Late-
Industrializing Economies (Oxford University Press 2003).
10
institutionalized Southern poverty.
58
Indeed, the North’s unsustainable model of
economic development was made possible by under-consumption of the global South.
59
The Great Acceleration was based on the importation of the South’s raw materials and
the over-exploitation of the world’s ecosystems to assimilate the North’s prodigious
emissions of pollutants and greenhouse gases.
60
III. Sustainable Development: Part of the Solution or Part of the Problem?
The root cause of the contemporary socio-ecological crisis is an international
economic order premised on unlimited economic growth that impoverishes the global
South and facilitates the overconsumption of the planet’s resources by its more affluent
inhabitants. This economic order reinforces the colonial notion that all societies must
evolve through particular stages until they achieve the apex of civilization represented
by the global North.
61
It casts development as the “ubiquitous goal of all states and
peoples,”
62
and equates development with rising material consumption.
63
Pioneered by
Europe and the United States, this economic model has now been exported to the
global South, and imposes ever-increasing demands on the world’s finite natural
resources and waste sinks.
64
58
See Gonzalez (n 47) 92-94. Countries that disregarded the Washington Consensus and adopted state-led
industrialization as a more reliable path out of poverty nevertheless pillaged the environment. For example, China
ignored the policy prescriptions of the Washington Consensus and used tariffs, import quotas, technology transfer
requirements, local content requirements, and aggressive industrial policy to achieve economic prosperity. China’s
defiance of neoliberal orthodoxy and embrace of state-led development (known as the “Beijing Consensus”) has
been touted as a model for the global South after decades of failed neoliberal economic reforms. However, China is
now facing an environmental crisis of breathtaking proportions while contributing significantly to global
environmental problems, including climate change, transboundary air pollution, and the illegal timber trade. See
Carmen G Gonzalez, ‘China in Latin America: Law, Economics, and Sustainable Development’ (2010) 40
Environmental Law Reporter News & Analysis 10171, 10174-10176.
59
See Bonneuil and Fressoz (n3) 249-250; Christopher Flavin and Gary Gardner, ‘China, India and the New World
Order’ in The Worldwatch Institute, State of the World 2006: Special Focus: China and India (WW Norton & Co
2006) 16-18 (explaining that the Global North, along with China and India, are currently utilizing 75 percent of the
planet’s biocapacity, making it impossible for other countries to pursue economic growth without provoking global
environmental catastrophe).
60
See Bonneuil and Fressoz (n3) 249-250.
61
See Gilbert Rist, The History of Development: From Western Origins to Global Faith (Zed Books 1997) 238;
Natarajan and Khoday (n 13) 588-589.
62
See Natarajan and Khoday (n 13) 588.
63
See James G Speth, The Bridge at the Edge of the World: Capitalism, the Environment, and Crossing from Crisis
to Sustainability (Yale University Press 2009) 46-51.
64
See Gonzalez (n 58) 10176, 10181.
11
The unbridled pursuit of economic growth has brought the planet’s ecosystems to
the brink of collapse. The 2005 United Nations Millennium Ecosystem Assessment
Synthesis Report concluded that human economic activity during the previous fifty years
produced more severe degradation of the planet’s ecosystems than in any prior period
in human history.
65
A decade later, an influential study published in the journal Science
explained that the global economy has already transgressed four of the nine planetary
boundaries essential to the planet’s ability to maintain an environment hospitable to
human and non-human life.
66
The global North, with only 18 percent of the world’s population, is responsible
for approximately 74 percent of the extraordinary post World War II economic
expansion.
67
While the North reaps the material benefits of the Great Acceleration, the
environmental consequences are borne disproportionately by Southern countries, by
nature, and by the planet’s most vulnerable human beings, including indigenous
peoples, racial and ethnic minorities, and the poor.
68
Having industrialized by
appropriating the South’s natural resources and by using more than its fair share of the
global commons for waste disposal, the North’s per capita ecological footprint continues
to significantly outstrip that of the South.
69
Scholars and activists have argued that the
global North owes an ecological debt
70
to the countries and peoples of the global South
for “resource plundering, unfair trade, environmental damage and the free occupation of
environmental space to deposit waste.
71
Indeed, this ecological debt is at the heart of
many North-South conflicts in international environmental law.
65
See United Nations Millennium Ecosystem Assessment, Synthesis Report: Ecosystems and Human Well-Being:
General Synthesis (Island Press/World Resources Institute 2005) 1-24,
www.millenniumassessment.org/en/Synthesis.html.
66
See Steffen et al (n 2), Climate change, species extinction, deforestation, and the runoff of phosphorus and
nitrogen into regional watersheds and oceans have exceeded the safe biophysical thresholds known as planetary
boundaries, thereby creating a dangerous and unstable environment.
67
See United Nations Millennium Ecosystem Assessment (n 65) 11.
68
See Rees and Westra (n 4) 100-103.
69
See ibid 109-12.
70
See Karin Mickelson, ‘Leading Towards a Level Playing Field, Repaying Ecological Debt, or Making
Environmental Space: Three Stories about International Environmental Cooperation’ (2005) 43 Osgoode Hall Law
Journal 138, 150-54; Duncan McLaren, ‘Environmental Space, Equity and the Ecological Debt’ in Just
Sustainabilities: Development in an Unequal World (n 4) 30-32.
71
Erik Paredis, et al, The Concept of Ecological Debt: Its Meaning and Applicability in International Policy
(Academia Scientific 2008) 7.
12
International environmental law has failed to challenge the fallacy of unlimited
economic growth. Although its meaning is highly contested, sustainable development is
widely recognized as one of the guiding principles of contemporary international law,
and it was designed to restrict unbridled, environmentally destructive economic
activity.
72
The World Commission on Environment and Development (the Brundtland
Commission) defined sustainable development as “development that meets the needs
of the present without compromising the ability of future generations to meet their own
needs.”
73
While this definition attempted to reconcile economic development and
environmental protection, it did not explicitly challenge the growth-oriented development
paradigm.
74
Indeed, the Brundtland Commission boldly asserted that “[g]rowth has no
set limits in terms of population or resource use beyond which lies ecological disaster.”
75
Instead of encouraging the global North to reduce its ecological footprint in order to
increase the living standards of the poor without exceeding biophysical limits, the
Brundtland Commission extolled the benefits of international trade as the engine of
economic growth and the solution to poverty and inequality.
76
As Gilbert Rist observes:
The main contradiction, then, in the Report of the Brundtland Commission is that the growth
policy supposed to reduce poverty and stabilize the ecosystem hardly differs at all from the policy
which historically opened the gulf between rich and poor and placed the environment in danger.
(emphasis in original).
77
Far from questioning the dominant development model that subordinated the global
South and sparked a socio-ecological crisis of epic proportions, sustainable
development “naturalizes and obfuscates the process whereby some people
systematically under-develop others.”
78
72
See generally Nico J Schrijver, The Evolution of Sustainable Development in International Law: Inception,
Meaning and Status (Brill 2008).
73
See World Commission on Environment and Development (WCED), Our Common Future (Oxford University
Press 1987) 8.
74
See Rist (n 61) 193; Wolfgang Sachs, ‘Environment’ in Wolfgang Sachs (ed), The Development Dictionary: A
Guide to Knowledge as Power (Zed Books 2010) 29.
75
WCED (n 73) 45.
76
See ibid 50-51, 89.
77
Rist (n 61) 186.
78
Natarajan and Khoday (n 13) 589.
13
Although the impossibility of unlimited economic growh has become increasingly
evident, international environmental law has failed to mount a frontal assault on the
global economic order or to attack its fundamental assumptions. Environmental treaties
repeat the mantra that the poor need economic development without acknowledging
ecological limits or the fact that the dominant economic model has increased North-
South inequality and widened the gap between the rich and the poor in all nations.
79
Global environmental degradation has been constructed as an externality to be
mitigated and internalized through multilateral environmental agreements,
80
thereby
treating the symptoms of the disease rather than addressing its underlying causes.
Instead of confronting head-on an economic model based on the unrestrained
extraction, trade, and consumption of natural resources, international environmental law
has left intact the contemporary global economic (dis)order that enriches the affluent,
exacerbates the plight of the poor, and accelerates Earth system destruction.
International environmental law is a field in crisis because the problems it currently
confronts are deeply embedded in the existing economic order and cannot be
adequately addressed by tinkering on the margins.
IV. The way forward
Environmental justice provides a compelling moral framework for the
reconceptualization of international environmental law. The primary cause of global
environmental degradation is the over-consumption of the planet’s finite resources by
global elites located primarily in the global North. This overconsumption has been
facilitated by international economic law with the complicity of international
environmental law. While global elites reap the benefits of unsustainable economic
activity, the South and the planet’s most vulnerable communities bear a
disproportionate share of the resulting pollution and resource depletion.
81
In response to
this inequity, transnational environmental justice movements have emerged in both the
79
See ibid 589-590.
80
See Cinnamon Carlarne, ‘Delinking International Environmental Law and Climate Change’ (2014) 4 Michigan
Journal of Environmental & Administrative Law 1, 15-16.
81
Gonzalez (n 47) 78-84.
14
North and the South, including grassroots social movements for climate justice, food
justice, energy justice, and water justice.
82
Emphasizing intra-generational justice,
many of these movements have framed their demands for environmental justice in the
language of human rights.
83
Human rights tribunals have concluded that failure to
protect the environment can violate a variety of human rights, including the rights to life,
health, property, privacy, the collective rights of indigenous peoples to their ancestral
lands and resources, and the right to a healthy environment.
84
Environmental justice movements have also articulated a more robust conception
of environmental justice that includes inter-generational justice (the rights of future
generations)
85
and the rights of nature.
86
For example, the principles of environmental
justice developed by the delegates to the 1991 First National People of Color
Environmental Leadership Summit held in Washington, DC, recognize both inter-
generational justice and the rights of nature.
87
Principle 1 affirms the sacredness of
Mother Earth, ecological unity and the interdependence of all species, and the right to
be free from ecological destruction.
88
Principle 3 “mandates the right to ethical,
balanced and responsible uses of land and renewable resources in the interest of a
sustainable planet for humans and other living things.
89
Principle 17 “requires that we,
as individuals, make personal and consumer choices to consume as little of Mother
Earth's resources and to produce as little waste as possible; and make the conscious
decision to challenge and reprioritize our lifestyles to ensure the health of the natural
world for present and future generations.”
90
In order to operationalize these principles,
82
See Joan Martinez-Alier et al, ‘Between Activism and Science: Grassroots Concepts for Sustainability Coined by
Environmental Justice Organizations’ (2014) 21 Journal of Political Ecology 19, 27-42.
83
See Julian Agyeman, et al, ‘Joined-up Thinking: Bringing Together Sustainability, Environmental Justice and
Equity’ in Just Sustainabilities: Development in an Unequal World (n 4) 10-12.
84
See generally Donald K Anton and Dinah L Shelton, Environmental Protection and Human Rights (Cambridge
University Press 2011).
85
See generally Edith Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony,
and Intergenerational Equity (Transnational Publishers 1989).
86
See generally Roderick Nash, The Rights Of Nature (University of Wisconsin Press 1989).
87
See First People of Color Environmental Leadership Summit, ‘Principles of Environmental Justice’ (24-27
October 1991) www.ejnet.org/ej/principles.html.
88
Ibid Principle 1.
89
Ibid Principle 3.
90
Ibid Principle 17.
15
some scholars have proposed specific criteria for equitably allocating the planet’s
resources between humans and other living creatures.
91
Finally, environmental justice has important North-South dimensions.
92
North-
South environmental inequities manifest themselves in the form of distributive,
procedural, corrective, and social injustice.
93
The North-South divide is grounded in
distributive injustice because the North reaped the economic benefits of natural
resource exploitation with no concern for environmental, social and economic
consequences. Northern excesses have produced potentially irreversible environmental
harm that will constrain the economic development options of present and future
generations, particularly in the global South.
94
North-South relations are characterized
by procedural injustice because the North dominates decision-making in the World
Bank, the IMF, the WTO, and multilateral environmental treaty negotiations. The views
of Southern countries are frequently marginalized.
95
North-South relations are marred
by corrective injustice because Southern nations (such as the small island developing
states facing the imminent uninhabitability of their territories due to climate change)
have generally been unable to obtain compensation for the North’s prodigious
contribution to global environmental degradation or cessation of the offending conduct.
96
Finally, North-South environmental conflicts are reflective of social injustice “because
they are inextricably intertwined with colonial and post-colonial economic policies that
impoverished the global South and facilitated the North’s appropriation of its natural
resources.”
97
With this normative framework in mind, this section provides a very preliminary
sketch of potential paths forward. Because it is impossible to re-invent international
environmental law in a few short paragraphs, this section provides an illustrative rather
than exhaustive list of possible alternatives to the status quo.
91
See Jorge Riechmann, ‘Tres principios básicos de la justicia ambiental’ (2003) 21 Revista Internacional de
Filosofía Política 103, 107-108, 112-115.
92
See generally Ruchi Anand, International Environmental Justice: a North-South Dimension (Ashgate Publishing,
2004).
93
See Gonzalez (n 47) 78-80.
94
See ibid 79; Flavin and Gardner (n 59), 16-18 .
95
See Gonzalez (n 47) 79.
96
See, e.g., Maxine Burkett, ‘Climate Reparations’ (2009) 10 Melbourne Journal of International Law 509.
97
Gonzalez (n 47) 79.
16
A. The Rights of Nature and Future Generations
Many scholars have recognized that the root of the ecological crisis is the
universalization of a Northern economic model that separates humans from nature and
promotes the domination of nature to satisfy human desires.
98
Ironically, the legal
systems of many of the peoples of the global South who were deemed “uncivilized” and
in need of “modernization” and “development” recognize the interdependence of
humans and the environment and the rights of future generations.
99
For example,
indigenous legal systems generally regard human beings as part of the Earth (and not
superior life forms), and have devised ethical and legal rules to facilitate each group’s
adaptation to its distinct ecological niche and to protect the ecological systems upon
which human and non-human life depend.
100
Instead of attempting to “civilize” and
“develop” the peoples of the South in accordance with Northern preferences and
priorities, it would perhaps be better to focus on transforming the practices and beliefs
emanating from the North that have triggered the contemporary ecological crisis.
Where might we seek inspiration for alternatives to the dominant economic
paradigm? Judge Christopher Weeramantry, in his separate opinion in the Gabčíkovo-
Nagymaros case, argues that international law should draw upon the wisdom of the
world’s diverse civilizations to enrich and clarify the evolving principles of contemporary
international law.
101
In the context of environmental wisdom generally, there is much to be derived from ancient
civilizations and traditional legal systems in Asia, the Middle East, Africa, Europe, the Americas,
the Pacific, and Australia in fact the whole world. This is a rich source which modern
environmental law has left largely untapped.
102
98
See Burns H Weston and David Bollier, Green Governance: Ecological Survival, Human Rights, and the Law of
the Commons (Cambridge University Press 2014) 49, 78; Geisinger (n 25) 44-46.
99
See, e.g., Rebecca Tsosie, ‘Tribal Development Policy in an Era of Self-Determination: The Role of Ethics,
Economics, and Traditional Ecological Knowledge’ (1996) 21 Vermont Law Review 225, 276-300.
100
Ibid; V.F. Cordova, How It Is: The Native American Philosophy of V.F. Cordova, Kathleen Dean Moore, et al,
(eds) (University of Arizona Press 2007).
101
See Gabčíkovo-Nagymaros Project (Hung. V. Slovakia), 1997 I.C.J. 7 (Sep. Op. Weeramantry) at 97.
102
Ibid 98.
17
Judge Weeramantry offers specific examples of civilizations that managed to survive
and thrive in harmony with the environment, and discusses the philosophies, legal
traditions, and technologies that made these accomplishments possible.
103
There were principles ingrained in these civilizations as well as embodied in their legal systems,
for legal systems include not merely written legal systems but traditional legal systems as well,
which modern researchers have shown to be no less legal systems than their written cousins,
and in some respects even more sophisticated and finely tuned than the latter (emphasis in
original).
104
Among the principles of traditional legal systems that can be incorporated into
contemporary environmental law are the trusteeship rather than ownership of natural
resources, the principle of intergenerational rights, and the rights of the nature. For
example, in 2008, Ecuador became the first country to adopt a national constitution
recognizing the rights of nature based on the principle of sumac kawsay, the Kichwa
idea of living in harmony with nature (known in Spanish as el buen vivir, or living
well).
105
In 2012, New Zealand accorded legal personhood to its longest navigable
river, the Whanganui, as an important step toward resolving the historic grievances of
Maori peoples.
106
That same year, Bolivia adopted the Framework Law of Mother Earth
and Integral Development for Living Well, which acknowledged the rights of nature.
107
In addition, several constitutions, including those of Bolivia, Ecuador, Kenya, and South
Africa, have recognized the rights of future generations.
108
Contrary to popular misconception, the South is not indifferent to global
environmental problems. Rather, Southern countries are deeply suspicious of the
103
See ibid 98-106.
104
Ibid 109.
105
Marc Becker, ‘Correa, Indigenous Movements, and the Writing of a New Constitution in Ecuador’ (2011) 38
Latin American Perspectives 47, 50; Peter Burdon, ‘Jurisprudence of Thomas Berry’ (2011) 15 Worldview 151, 164;
Juliet Pinto, ‘“Right for Nature” in Ecuador: The Mediated Social Construction of Human/Nature Dualisms’ in Alex
Latta and Hannah Wittman (eds), Environment and Citizenship in Latin America: Natures, Subjects and Struggles
(Berghahn Books 2012) 227, 236-237.
106
See New Zealand’s Whanganui River Gets Personhood Status, ENVTL NEWS SERV. (Sept. 13, 2012),
available at http://ens-newswire.com/2012/09/13/new-zealands-whanganui-river-gets-personhood-status/.
107
See Ley Marco de La Madre Tierra y Desarrollo Integral Para Vivir Bien (Framework Law of Mother Earth and
Integral Development For Living Well), Ley No. 300, Gaceta Oficial del Estado Plurinacional de Bolivia, Edición
No. 0431 (October 15, 2012).
108
See U.N. Secretary-General, Intergenerational Solidarity and the Needs of Future Generations, at 26, U.N. Doc.
A/68/x (August 5, 2013), available at http://sd.iisd.org/news/unsg-issues-report-on-intergenerational-solidarity/.
18
North’s tendency to “reform” the South without assuming responsibility for the policies,
practices and ideologies emanating from the North that impoverished the South and
created the present ecological crisis. For example, in a speech delivered at the 1972
Stockholm Conference on the Human Environment, Indian prime minister Indira Gandhi
recognized that human beings are part of nature and dependent on nature, criticized
mainstream understandings of development as growth, and emphasized the need for
North-South cooperation to protect the environment and address the plight of the
planet’s most vulnerable human beings.
109
Decades later, in response to the Rio+20
outcomes, Southern states and non-governmental organizations called for new
approaches to environment and development, condemned efforts to merely “green” the
neoliberal economic model, and called for local solutions to contemporary economic
and environmental crises rather than models and solutions imported from the North.
110
Reimagining some of the foundations of international environmental law such as rights
and intergenerational reach of environmental protection through the histories and
traditions of other civilizations might enable us to develop alternative philosophies and
economic relations that will scale back the North’s consumption of the planet’s
resources for the benefit of subordinated states and peoples, future generations, and
the other living creatures with whom we share the planet.
B. Minding the Justice Gap Taking Intra-Generational Equity Seriously
Climate change and other ecological disasters will intensify the suffering of the
millions of people in the global South who lack adequate access to environmental
necessities, such as clean water, food, and modern energy. However, this
environmental injustice remains largely outside the purview of international
environmental law. Instead, food, water, and energy are regulated through a patchwork
109
See Karin Mickelson, ‘The Stockholm Conference and the Creation of the South-North Divide in International
Environmental Law and Policy,’ in Shawkat Alam, Sumudu Atapattu, Carmen G Gonzalez, and Jona Razzaque
(eds), International Environmental Law and the Global South (Cambridge University Press 2015) 116-117.
110
Ibid 128-129.
19
of legal instruments and private arrangements, many of which fall in the economic law
field.
111
International environmental law can bridge the North-South divide and promote
environmental justice by developing creative solutions to seemingly intractable
problems that simultaneously benefit marginalized states and peoples, curb
environmental degradation, and forge a new path to sustainability. For example,
despite their minimal greenhouse gas emissions, the world’s poorest countries will be
disproportionately affected by climate change as a consequence of their vulnerable
geographic locations, agriculture-based economies, and limited resources for
adaptation and disaster response.
112
The 2.8 billion people who lack access to energy
to meet their needs for cooking, heating, sanitation, lighting, transportation or basic
mechanical power (the energy poor) will be disparately burdened by death, disease and
dislocation as a consequence of the droughts, floods, rising sea levels, and more
frequent and severe storms caused by climate change.
113
The climate change regime presents the global North with an opportunity to
repay the ecological debt, foster environmental justice, and promote the transition to
clean energy by financing the provision of renewable energy to the energy poor. The
preamble to the United Nations Framework Convention on Climate Change (UNFCCC)
explicitly recognizes that increasing energy consumption in the global South is
necessary to eradicate poverty.
114
Similarly, the Paris Agreement negotiated at the
December 2015 UNFCCC Conference of the Parties acknowledges “the need to
promote universal access to sustainable energy in developing countries, in particular in
111
See Natarajan and Khoday (n 13) 592. For an analysis of some of the food, water, and energy justice issues
confronting the international community, see the chapters by Carmen G Gonzalez, Jackie Dugard & Elisabeth Koek,
and Lakshman Guruswamy in International Environmental Law and the Global South (n 11) 401-434, 469-490,
529-549. For a discussion of the human rights, environmental, and economic dimensions of access to food, see
Carmen G Gonzalez, ‘International Economic Law and the Right to Food’ in Nadia CS Lambek, Priscilla Claeys,
Adrienna Wong, and Lea Brilmayer (eds), Rethinking Food Systems: Structural Challenges, New Strategies and the
Law (Springer 2014) 165-193.
112
See Anand (n 88) 35-41.
113
See Fatih Birol, ‘Achieving Energy for All Will Not Cost the Earth’ in Antoine Halff, Jon Rozhon and Benjamin
K Sovacool (eds), Energy Poverty: Global Challenges and Local Solutions (Oxford University Press 2014) 14.
114
See United Nations Framework Convention on Climate Change (UNFCCC). Concluded at Rio de Janeiro, 9 May
1992. Entered into force, 21 March 1994. 1771 UNTS 107, preamble.
20
Africa, through the enhanced deployment of renewable energy.
115
Although the Paris
Agreement does not operationalize this commitment or allocate funding to fulfill this
objective, one important vehicle for incorporating energy access into the climate change
regime is the Green Climate Fund developed at the UNFCCC Conference of the Parties
in December 2009 in Copenhagen.
116
While a detailed discussion of the Green Climate Fund is beyond the scope of
this chapter, it is important to emphasize the benefits of incorporating energy access
into climate change mitigation and adaptation projects. First, the reliance by the energy
poor on biomass (such as wood and dried animal dung) for cooking poses significant
risks to human health.
117
The smoke released by inefficient and inadequately ventilated
cooking facilities produces four million premature deaths each year (primarily among
women and children) due to a variety of ailments caused by exposure to indoor air
pollution.
118
Second, the black carbon released by the combustion of biomass is the second
most significant contributor to climate change after carbon dioxide. Black carbon, when
it is released into the air, exacerbates climate change by absorbing solar radiation more
effectively than other greenhouse gases, such as methane and tropospheric ozone.
119
Third, the burning of biomass for energy contributes to deforestation.
Deforestation destroys valuable carbon sinks, accelerates soil erosion, and deprives
local communities of essential ecosystem services, including flood control, drought
resistance, regulation of rainfall, habitat for biodiversity, and enhancement of water
quality.
120
115
United Nations Framework Convention on Climate Change, Paris Agreement, FCCC/CP/2015/L.9, Dec. 12,
2015, preamble.
116
See Martin Hiller, Andreas Zahner, Katrin Harvey, and Amy Meyer, ‘Green Climate Fund, Sustainable
Development Goals, and Energy Access,’ in Lakshman Guruswamy (ed) International Energy and Poverty: The
Emerging Contours (Routledge 2016) 192-203.
117
See International Energy Agency (IEA) (n 9) 51.
118
See World Health Organization (WHO), ‘Household Air Pollution and Health’ (WHO, 1 February 2016)
www.who.int/mediacentre/factsheets/fs292/en/.
119
V Ramanathan and G Carmichael, ‘Global and Regional Climate Changes due to Black Carbon’ (2008) 1 Nature
Geoscience 221, 222; TC Bond and others, ‘Bounding the Role of Black Carbon in the Climate System: A Scientific
Assessment’ (2013) 118 Journal of Geophysical Research: Atmospheres 5380, 5381.
120
See generally Norman Meyers, ‘The World’s Forests and Their Ecosystem Services’ in Gretchen Daily (ed),
Nature’s Services: Societal Dependence on Natural Ecosystems (Island Press 1997).
21
Finally, reducing black carbon emissions is quite inexpensive relative to other
greenhouse gases, and the benefits are potentially enormous.
121
While carbon dioxide
can reside in the atmosphere for 50 to 200 years, black carbon dissipates in as little as
one week if existing emissions cease.
122
Thus, providing efficient sources of energy to
the energy poor will mitigate climate change more effectively than merely targeting
carbon dioxide emissions.
123
In short, reducing black carbon emissions by addressing energy poverty
represents a win-win proposition that bridges the North-South divide and enhances the
well-being of the energy poor while avoiding environmental “tipping points” by producing
immediate emissions reductions. Although providing modern electrical energy to the
energy poor would be an expensive decades-long undertaking, numerous appropriate
sustainable energy technologies (ASETs) are presently available, including
decentralized electricity generating systems based on solar, wind, and local biodiesel;
efficient cook-stoves; and solar thermal heating.
124
Decentralized renewable energy-based systems can provide the energy poor
with electrical power without binding them to existing fossil-fuel based energy systems
that are expensive, polluting, and vulnerable to capture by transnational corporations
and kleptocratic national elites. ASETs thereby promote democracy, self-determination,
and local control in addition to mitigating climate change and accelerating the global
South’s transition to sustainable energy. By producing an immediate decline in a very
potent but short-lived greenhouse gas (black carbon), ASETs also provide a short
reprieve from climate catastrophe and an opportunity to develop long-term solutions to
climate change and energy poverty.
The fragmentation of international law has created regulatory gaps in areas of
acute environmental, economic, and social concern, such as food, water, and energy.
In order to meet the challenges of the Anthropocene, international environmental law
must break out its narrow silo and foster long-term solutions to global environmental
problems that advance the interests of socially and economically powerless groups
121
See Lakshman Guruswamy, ‘Energy Justice and Sustainable Development’ (2010) 21 Colorado Journal of
International Environmental Law and Policy 231, 238.
122
See ibid 246.
123
See ibid.
124
Lakshman Guruswamy, ‘Energy Poverty’ (2011) 36 Annual Review of Environment and Resources 139, 144.
22
while hastening the transition to more sustainable patterns of production and
consumption. Food, energy, and water the basic necessities of life should be
central rather than peripheral to the mission of international environmental law.
C. Challenging the Global Economic Order
International law’s long-standing commitment to commerce is linked, in complex
ways, with its inability to address environmental degradation. From the colonial era to
the present, international law and institutions have facilitated the free flow of goods,
services, and capital across national borders without taking into account the impact on
local ecosystems and livelihoods.
125
The early authors of international law regarded commerce as a “consensual act
of reciprocal mutual beneficial exchange” that would build peace and friendship among
the world’s scattered peoples.
126
This idealized view of commerce bore little relationship
to the coercive practices of the colonizers, slave-traders, and settlers of the colonial era,
and assumed an abundant and inexhaustible supply of natural resources.
127
Despite growing awareness that human economic activity is exceeding
biophysical limits, contemporary advocates of trade liberalization have adopted an
equally sanguine theory of the relationship between international trade and
environmental protection.
128
Known as the Environmental Kuznets Curve (EKC)
hypothesis, this theory posits an inverted-U relationship between per capita income (on
the x axis) and environmental degradation (on the y axis), with environmental quality
improving as per capita income rises.
129
While pollution initially increases as income
grows, environmental quality supposedly improves at higher income levels.
130
125
See Bratspies (n 33) 228.
126
See Ileana Porras, ‘Appropriating Nature: Commerce, Property, and the Commodification of Nature in the Law
of Nations’ (2014) 27 Leiden Journal of International Law 641.
127
See ibid.
128
See Bratspies (n 33) 231-232.
129
See generally Gene M Grossman and Alan B Krueger, ‘Economic Growth and the Environment’ (1995) 110 The
Quarterly Journal of Economics 353; Gene M Grossman and Alan B Krueger, ‘Environmental Impact of a North
American Free Trade Agreement’ in Peter Garber (ed), The Mexico-U. S. Free Trade Agreement (MIT Press, 1993)
13-56. The theoretical relationship between environmental degradation and per capita income is referred to as the
Environmental Kuznets Curve (EKC) hypothesis because it parallels the inverted-U relationship between income
inequality and per capita income put forward by economist Simon Kuznets. See Swee Chua, ‘Economic Growth,
23
The EKC hypothesis has, however, been challenged on empirical grounds.
Empirical studies have not found a consistent inverted-U relationship between per
capita income and environmental degradation,
131
and some economists have rejected
the hypothesis altogether.
132
Indeed, greenhouse gas emissions, loss of biodiversity,
depletion of fisheries, waste production, and overall ecological footprint generally
increase with rising wealth.
133
Export-driven resource extraction can also produce
irreversible environmental harm (such as species extinction), and imposes enormous
burdens on vulnerable communities, who bear the environmental costs of mining,
logging, and petroleum extraction while reaping few of the benefits.
134
Nevertheless, this quasi-religious belief in the benefits of liberalized trade has
produced an international economic order that generally ignores the environmental and
social consequences of production and implicitly encourages environmental subsidies.
Global markets determine what level of environmental degradation and social
dislocation Southern exporters will have to bear regardless of local preferences.
135
Bilateral investment treaties shield foreign investors from efforts by Southern countries
to impose social and environmental standards.
136
Sophisticated corporate investors
evade the social, financial, and environmental risks of their activities by operating
through multiple subsidiaries and a complex web of contracts.
137
The separation
between consumption and production obscures the environmental and social impacts of
the production process and encourages consumers to purchase the lowest cost goods
regardless of their impact on exhaustible natural resources.
138
Moreover, the global
Liberalization, and the Environment: A Review of the Economic Evidence’ (1999) 24 Annual Review of Energy and
the Environment 391, 395; Simon Kuznets, ‘Economic Growth and Income Inequality’ (1955) 46 The American
Economic Review 1, 1-28.
130
See Grossman and Krueger (n 129) 366-369; Chua (n 129) 395.
131
Chua (n 129) 395-396.
132
See generally David I Stern, ‘The Rise and Fall of the Environmental Kuznets Curve’ (2004) 32 World
Development 1419.
133
See generally Edward B Barbier, ‘Introduction to the Environmental Kuznets Curve Special Issue’ (1997) 2
Environment and Development Economics 369; K Arrow et al, ‘Economic Growth, Carrying Capacity, and the
Environment’ (1995) 268 Science 520.
134
See Bratspies (n 33) 238-240.
135
See ibid 248-249.
136
See Miles (n 22) 37-44.
137
See generally Shalanda H Baker, ‘Unmasking Project Finance: Risk Mitigation, Risk Inducement, and an
Invitation to Development Disaster?’ (2010) 6 Texas Journal of Oil, Gas, and Energy Law 273.
138
See Carmen G. Gonzalez, ‘Beyond Eco-Imperialism: An Environmental Justice Critique of Free Trade’ (2001)
78 Denver University Law Review 979, 1003-1004.
24
economic order transfers wealth from the South to the North by encouraging the sale of
commodities at prices that do not reflect the social and environmental costs of
production.
139
Regrettably, Northern efforts to address the negative environmental impacts of
liberalized trade have often exacerbated the North-South divide. The United States’
decision to restrict the importation of products that did not meet its environmental
requirements resulted in a series of high profile trade disputes in the 1990s, including
the Tuna/Dophin, Shrimp/Turtle, and US-Gasoline cases.
140
In all three cases, Southern
countries challenged the U.S. restrictions as GATT/WTO violations, and argued that
they constituted a “neocolonial stick, a protectionist barrier designed to keep their
economies down.”
141
While the GATT/WTO resolved all three cases in favor of the
Southern complainants, the WTO Appellate Body subsequently shifted its approach and
recognized the legitimacy of unilateral trade restrictions to protect the environment.
142
The North’s use of trade-restrictive environmental measures inflamed North-
South tensions because these restrictions enabled Northern countries to dictate how the
South would use its natural resources without providing technical or financial assistance
to resource-poor Southern producers and without taking responsibility for the far greater
environmental harm wrought by the North’s consumption-driven lifestyle.
143
Instead of
addressing the systemic nature of trade-induced environmental degradation and
seeking to scale back its over-consumption of the planet’s resources, the North imposed
the cost of compliance with a series of ad hoc environmental requirements on the
South. In so doing, the North perpetuated the narrative that casts Northern countries as
“leaders in advancing the global environmental protection, at times resorting to tariffs
and trade restrictions on imports to encourage developing countries seen as unwilling to
do their share.”
144
This narrative is hypocritical given the North’s historic and ongoing
over-exploitation of the South’s resources. It also reproduces the “civilizing mission”
139
See Martinez-Alier (n 32) 214.
140
See Mark Wu and James Salzman, ‘The Next Generation of Trade and Environment Conflicts: The Rise of Green
Industrial Policy’ (2014) 108 Northwestern University Law Review 401, 408-411.
141
Ibid 409.
142
See ibid 409-413 (describing the evolution of the GATT/WTO jurisprudence on trade-restrictive environmental
measures).
143
See Gonzalez (n 138) 1004-1009.
144
Wu and Salzman (n 140) 413.
25
this time in environmental garb and undermines North-South environmental
cooperation.
While an analysis of specific proposals to reform international economic law is
beyond the scope of this chapter,
145
the reorientation of the world economy toward more
just and sustainable practices will require an unprecedented level of North-South
collaboration. De-mythologizing the narratives about the unequivocal benefits of
commerce and about the North’s “civilizing mission” is an essential first step to bridge
the North-South divide and to dismantling the legal regimes that perpetuate this divide.
International environmental law does not exist in a vacuum. In order to develop
effective solutions to the socio-ecological crises of the Anthropocene, it is essential to
harmonize the disparate stands of international law (including environmental, economic
and human rights law) in order to promote the rights of nature, present generations and
future generations. International economic law systematically accelerates environmental
degradation, subordinates the global South, and consigns environmental issues to the
peripheries of legal discourse and policy-making, while international environmental has
not managed to successfully keep humanity from crossing planetary boundaries and
reaching critical tipping points. Without a fundamental restructuring of international
economic and environmental law, a just and sustainable planet in the Anthropocene
epoch is impossible.
Conclusion
. The Anthropocene presents both promise and peril. The growing recognition that
human beings have altered the planet’s biophysical and biochemical processes in ways
that threaten human and non-human life challenges the ontological separation between
humans and nature central to international law and many other disciplines.
146
As one
observer points out, we find ourselves “in the position of the Catholic cleric confronting
145
For discussion of specific reforms to the global economic order, see, e.g, Howard Mann, ‘Reconceptualizing
International Investment Law: Its Role in Sustainable Development’ (2013) 17 Lewis & Clark Law Review 521;
Carmen G Gonzalez, ‘An Environmental Justice Critique of Comparative Advantage: Indigenous Peoples, Trade
Policy, and the Mexican Neoliberal Economic Reforms’ (2011) 32 University of Pennsylvania Journal of
International Law 723.
146
See Bonneuil and Fressoz (n.3) 6-14, 250-287.
26
the Copernican theories that supplanted geocentrism.”
147
This unique moment in human
history calls for critical engagement with international law in order to develop effective
tools that address our responsibility to nature, to one another, and to future generations.
This chapter has provided an overview of the origins of the Anthropocene in
colonial and post-colonial economic law and policy and the failure of international
environmental law to remedy its social, economic and environmental consequences.
The objective is to provoke further discussion and analysis about new approaches to
international environmental and economic law that will promote environmental justice in
an era of growing economic inequality and looming ecological collapse
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... Therefore, the so-called new legal concepts that emerge with IEL are part of an updating process of the metanarratives of international law to survive in the passage major geological and environmental force, as important as, or more important than, na 6 Within this new paradigm, nature cannot be a mere object in which human beings observe to understand and dominate within the boundaries of the social, but their experiences in developing and sustaining order in the natural world produce existential threats (Vidas et al. 2015; 7 Thomas 1996; 8 Foster 1999 9 ). 10 The increasing natural extreme events happening all over the world are becoming a growing concern o 11 Unfortunately, the same concern cannot be observed in the international political arena, which lately has striven to address the environmental challenges (Bernardin, Chiuso, and Lesage 2015; 12 Gonzalez 2017; 13 Alam et al. 2016). 14 Considering the arguments presented, by no means, it is said that IEL is not a relevant area of study. ...
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This book addresses the challenge of securing high-paying jobs for American workers. It examines the impacts of a wide range of state and local characteristics-such as low taxes, high-skilled workforce, reliance on manufacturing, and even nice weather-on the economic development of U.S. regions. The author provides a detailed account for each factor's impact on the growth of good jobs. The research focuses on U.S. metropolitan areas and states, tracking employment and income change in these regions from 1990 to the near present. While providing numerous best principles for state and regional policy, the author uncovers the keys to supporting high-paying U.S. jobs in an important book that will prove invaluable to elected officials, economic development practitioners, and students interested in the pursuit of economic development.
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This short piece introduces the special issue on environmental Kuznets curves (EKC) — the hypothesized ' inverted-U' relationship between levels of environmental degradation and per capita income. Although the analysis of EKC relationships has been a relatively recent phenomenon, there is widespread interest on the part of academics in this analysis, and on the part of policymakers in the resulting implications for environment and development. The following introduction outlines the contributions to EKC analysis of the papers comprising the special issue. This is done in two ways: first, the empirical results of the special issue papers are compared with previous analyses of the EKC relationships; and second, the additional insights offered by the special issue papers on EKCs are discussed.