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Against Fairness? International Environmental Law, Disciplinary Bias, and Pareto Justice


International environmental law (IEL) as a discipline has failed to respond to problems of fairness in a meaningful and systematic fashion. Whilst IEL has long acknowledged the existence of competing claims regarding the fair distribution of costs, resources, and responsibilities, fairness remains at the periphery of the disciplinary discourse. The present essay considers some possible explanations for this neglect. The first part of the essay examines a set of implicit assumptions and beliefs in which IEL is embedded, which somewhat prevent genuine and critical engagement with fairness issues. The second part of the essay considers normative and policy arguments recently developed in the law and economics literature that explicitly argue against the notion that fairness should play a role in the design and implementation of environmental regimes. The essay concludes by calling for a more robust engagement with fairness issues and by considering some of the implications this project may have for IEL.

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K. Mickelson , ‘South, North, International Environmental Law, and International Environmental Lawyers’, (2000) 11 Yearbook of International Environmental Law 52

D. Bodansky , ‘The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?’, (1999) 93 AJIL 596

A. Najam , ‘Developing Countries and Global Environmental Governance: From Contestation to Participation to Engagement’, (2005) 5 International Environmental Agreements 303

G. Valdivia , ‘The Amazonian Trial of the Century: Indigenous Identities, Transnational Networks, and Petroleum in Ecuador’, (2007) 32 Alternatives: Global, Local, Political 41

A. Bernal , ‘Power, Powerlessness and Petroleum: Indigenous Environmental Claims and the Limits of Transnational Law’, (2011) 33 New Political Science 143

R. Morgan , ‘Advancing Indigenous Rights at the United Nations: Strategic Framing and Its Impact on the Normative Development of International Law’, (2004) 13 Social and Legal Studies 481

S. Lélé , ‘Sustainable Development: A Critical Review’, (1991) 19 World Development 607

M. Blaug , ‘The Fundamental Theorems of Modern Welfare Economics, Historically Contemplated’, (2007) 39 History of Political Economy 185, at 197

J. Viñuales , ‘Balancing Effectiveness and Fairness in the Redesign of the Climate Change Regime’, (2011) 24 LJIL 1

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Leiden Journal of International Law
  • ISSN: 0922-1565
  • EISSN: 1478-9698
  • URL: /core/journals/leiden-journal-of-international-law
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