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

Abstract
Abstract

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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1 See, e.g., A. Agarwal and S. Narain, ‘Global Warming in an Unequal World: A Case of Environmental Colonialism’, (1991) Earth Island Journal 39.

2 The North–South divide should not be overstated. Neither the North nor the South is homogeneous. Tensions exist within each group and climate talks have seen alliances form across the dividing line. That said, the North–South divide remains a living reality for many people in the world and a powerful structuring logic in environmental negotiations.

3 We use the term ‘fairness’ as defined by Thomas Franck in his Fairness in International Law and Institutions (1997). Fairness thus defined includes both substantive (i.e., distributive) justice and procedural legitimacy: ‘the fairness of international law, as of any other legal system, will be judged, first by the degree to which the rules satisfy the participants’ expectations of justifiable distribution of costs and benefits, and secondly by the extent to which the rules are made and applied in accordance with what the participants perceive as right process’ (at 7).

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

5 We thank all participants in the inaugural workshop for their support and fruitful collaboration. The full program of the workshop as well as a conference report can be found on the group's website at http://esiligiel.wordpress.com.

6 See, generally, T. Skouteris, The Notion of Progress in International Law Discourse (2010).

7 O. Mazaudoux, Droit international public et droit international de l'environnement (2008), 15.

8 S. Bhatt, International Environmental Law (2007), 33.

9 R. Falk, This Endangered Planet: Prospects and Proposals for Human Survival (1972).

10 Dupuy P.-M., ‘Soft Law and the International Law of the Environment’, (1991) 12 Mich. JIL 420, at 422.

11 Birnie P., ‘International Environmental Law: Its Adequacy for Present and Future Generations’, in Hurrell A. and Kingsbury B. (eds.), The International Politics of the Environment (1992), 51, at 84: ‘the sovereignty doctrine is still alive but in the case of the protection of the environment, it no longer manifests itself in the shape of an albatross; its wings have been clipped by a growing number of widely accepted regulations . . . that are now widely regarded as being indispensable to preservation of life on our planet . . . . A creature of new shape is emerging perhaps best renamed . . . as “responsible sovereignty”.’

12 See, e.g., M. Fitzmaurice, ‘International Protection of the Environment’, (2002) Collected Courses of the Academy of International Law 9, at 21; D. Bodansky, The Art and Craft of International Environmental Law (2010), 18.

13 Cited by E. Brown-Weiss (ed.), Environmental Change and International Law (1992), 13.

14 Mickelson, supra note 4, at 55–60.

15 See, generally, Dupuy, supra note 10.

16 See, e.g., P. Birnie and A. Boyle, International Law and the Environment (2002), 23; Maljean-Dubois S., ‘La “fabrication” du droit international au défi de la protection de l'environnement’, in SFDI (ed.), Le droit international face aux enjeux environnementaux (2010).

17 See, e.g., Fitzmaurice M., ‘International Environmental Law as a Special Field’, (1994) 25 NYIL 181, at 199–201.

18 Bodansky D., ‘The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?’, (1999) 93 AJIL 596, at 597.

19 See, e.g., U. Beyerlin and T. Marauhn, International Environmental Law (2011), v: ‘mankind has recently experienced devastating natural catastrophes – the tsunamis in the Indian Ocean and off the Japanese coast, the Hurricane Katrina and the Pakistan floods . . . . The effects of natural catastrophes have often been exacerbated by human-induced incidents, such as the explosion of the oil platform Deepwater Horizon in the Mexican Gulf . . . . Apart from such “headline” disasters, a myriad of simultaneously occurring multifaceted processes of environmental degradation are presenting unprecedented ecological challenges for the international community and global civil society. It is not just the responsibility of politicians but also of scholars, including those skilled in international law, to actively engage in the global discourse on finding new ways and means to address these threats and to enhance global environmental governance in order to preserve the Earth from its worst environmental threats. Indeed, the potential contribution of international environmental law to cope with this growing global environmental crisis is more than just an added value, it is a matter of urgency.’

20 Gillespie A., ‘An Introduction to Ethical Considerations in International Environmental Law’, in Fitzmaurice M., Ong D., and Merkouris P. (eds.), Research Handbook on International Environmental Law (2011), 117.

21 Mickelson, supra note 4, at 60.

22 D. Hunter, J. Salzman, and D. Zaelke, International Environmental Law and Policy, 2nd edn (2001), 27.

23 E. Louka, International Environmental Law: Fairness, Effectiveness, and World Order (2007), 29.

24 This argument is made explicitly by Posner and Weisbach in Climate Justice (2010), 5: ‘Many people treat climate negotiations as an opportunity to solve . . . the admittedly unfair distribution of wealth across northern and southern countries, the lingering harms of the legacy of colonialism, and so forth’; see section 3, infra.

25 Louka, supra note 23, at 69–70.

26 On the changing attitudes of the South regarding international environmental law and politics, see Najam A., ‘Developing Countries and Global Environmental Governance: From Contestation to Participation to Engagement’, (2005) 5 International Environmental Agreements 303.

27 See Valdivia G., ‘The Amazonian Trial of the Century: Indigenous Identities, Transnational Networks, and Petroleum in Ecuador’, (2007) 32 Alternatives: Global, Local, Political 41; Bernal A., ‘Power, Powerlessness and Petroleum: Indigenous Environmental Claims and the Limits of Transnational Law’, (2011) 33 New Political Science 143.

28 See J. Watts, ‘Victory for Burma Reformers over Dam Project’, The Guardian, 30 September 2011.

29 Some interesting developments are taking place as part of UNDP's community-based adaptation project. This project looks at local communities as frontline actors in the response to climate change and seeks to build their resilience and resistance capacity. For more information on the project, see www.undp-adaptation.org/projects/websites/index.php?option=com_content&task=view&id=203.

30 See Sands P. (ed.), Greening International Law (1993), xv: ‘the realization that ad hoc, disparate and reactive policy responses by individual states or local communities will be wholly inadequate to address the growing environmental problems faced by the international community has been critical to the development of international environmental law.’

31 Mickelson, supra note 4, at 65.

32 The concept of ‘strategic framing’ is borrowed from Morgan R., ‘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.

33 See Ellis J., ‘Sustainable Development as a Legal Principle: A Rhetorical Analysis’, in Ruiz-Fabri H., Wolfrum R., and Gogolin J. (eds.), Select Proceedings of the European Society of International Law, Vol. 2 (2010), 642.

34 For a classical critique of sustainable development's conceptual weaknesses and inherent contradictions, see Lélé S., ‘Sustainable Development: A Critical Review’, (1991) 19 World Development 607.

35 Stark B., ‘Sustainable Development and Postmodern International Law: Greener Globalization?’, (2002) 27 William and Mary Journal of Environmental Law and Policy 137, at 152.

37 See, generally, P. Cullet, Differential Treatment in International Environmental Law (2003); L. Rajamani, Differential Treatment in International Environmental Law (2006).

38 On these various interpretations of CBDRs, see French D., ‘Developing States and International Environmental Law: The Importance of Differentiated Responsibilities’, (2000) 49 ICLQ 35, at 37.

39 See Birnie and Boyle, supra note 16, at 100.

40 E. Posner and D. Weisbach, Climate Change Justice (2010).

41 Posner E. and Sunstein C., ‘Climate Change Justice’, (2007–08) 96 GLJ 1565; Posner E. and Sunstein C., ‘Should Greenhouse Gas Permits Be Allocated on a Per Capita Basis?’, (2009) 97 CLR 51. Sunstein was unable to take part in the book due to his nomination in the Obama administration.

42 J. Goldsmith and E. Posner, The Limits of International Law (2005); E. Posner, The Perils of Global Legalism (2009). For a critique from a rational-choice perspective, see Van Aeken A., ‘To Do Away with International Law? Some Limits to “The Limits of International Law”’, (2006) 16 EJIL 289.

43 Posner and Weisbach, supra note 40, at 8. For an early application of welfarism to international law and human rights, see E. Posner, ‘International Law: A Welfarist Approach’, (2006) 73 University of Chicago Law Review 487; E. Posner, ‘Human Welfare, Not Human Rights’, (2008) 108 Columbia Law Review 1758.

45 Posner and Sunstein, ‘Climate Change Justice’, supra note 41, at 1569–70; Posner and Weisbach, supra note 40, at 6. For earlier uses of the Pareto principle in law, see R. Posner, Economic Analysis of Law (1992).

46 Posner and Weisbach, supra note 40, at 192.

47 Ibid., at 5.

48 Ibid., at 192.

49 On that issue, the authors’ position differs from the mainstream IEL proposition that distributive claims should be accommodated within environmental regimes.

50 Posner and Weisbach, supra note 40, at 84.

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

52 Posner and Weisbach, supra note 40, at 170.

53 Ibid., at 73, 79, 80, 97.

54 Ibid., at 60, 95.

55 This notion is articulated in the concept of ‘ecological debt’. See, on this point, Mickelson K., ‘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 137, at 150–8.

56 Shue H., ‘The Unavoidability of Justice’, in Hurrell A. and Kingsbury B. (eds.), The International Politics of the Environment (1992), 376.

57 Posner, ‘International Law’, supra note 43, at 47.

58 Posner and Weisbach, supra note 40, at 93.

59 Ibid., at 100.

60 Ibid., at 103.

63 Ibid., at 104.

64 Ibid., at 183.

65 Ibid., Chapter 7.

66 D. Farber, ‘Climate Justice’, 10 July 2011, 6, available at SSRN: http://ssrn.com/abstract=1883186.

67 On the need to move beyond the ‘accommodationist’ approach, see Mickelson, supra note 4, at 77–81.

68 Franck, supra note 3, at 22–4, 481–2.

69 For a recent attempt at mapping the sort of issues that arise at the intersection of fairness and effectiveness, see Viñuales J., ‘Balancing Effectiveness and Fairness in the Redesign of the Climate Change Regime’, (2011) 24 LJIL 1.

* Mario Prost is a lecturer in law at Keele University []. Alejandra Torres Camprubí is a research fellow at the Faculty of Law, Universidad Autónoma de Madrid []. The authors are grateful to Joseph Watson and Luciano Donadio Linares for their helpful comments.

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