The Sustainable Development Goals (SDGs), Agenda 2030, and international law interact in multifaceted and complex ways. On the one hand, neither Agenda 2030 nor the SDGs fundamentally question the role of the international economic system, which is entrenched in international law and supportive of activities that do not necessarily further sustainable development. On the other hand, Agenda 2030 aims to transform our world, by evoking a bold cosmopolitan understanding of sustainable development, so that no one is left behind. This cosmopolitan understanding of sustainable development should inspire the application and development of international law, if indeed no one is to be left behind. International law offers ample opportunities for implementing such an approach to sustainable development.

This book is the culmination of a project which started in August 2005, when the board of the Stockholm Environmental Law and Policy Centre adopted, on its agenda, the plan for an international conference on environmental law and justice. The plans materialised, and the ‘2006 Stockholm Conference on Environmental Law and Justice’ took place at Stockholm University on 6–9 September 2006. The project could not have been accomplished without the generous support of the Swedish Research Council (Vetenskapsrådet), the Bank of Sweden Tercentenary Foundation (Riksbankens Jubileumsfond), the Swedish Research Council for Environment, Agricultural Sciences and Spatial Planning (Formas), the Cassel Foundation (Casselstiftelsen), the Department of Law, Stockholm University, and Nordforsk through the Nordic Environmental Law Network (NELN). In addition, the Stockholm Consumer Cooperative Society (Stockholms Konsumentförening) supported the conference with Fair Trade coffee and sweets.

Almost all contributions are based on papers presented at the conference. We are grateful to all the contributors for their co-operation and patience. All were generous with their time. We are particularly grateful to William Twining for advice in carrying through the book project, and to Hanne Petersen, who, although not a conference participant, responded readily to our request to fill a significant gap in the book's content. In selecting the speakers for the conference, and thus the contributors to this book, we were supported by the other members of the conference organising committee, Jutta Brunnée, Ludwig Krämer and Richard Falk.

Outline

Environmental laws and policies are predominantly goal-oriented. Standards, principles and procedures for the protection of the environment are often instrumental to achieve, say, the conservation of fragile ecosystems and endangered species, the preservation of fresh water and other natural resources, the restoration of contaminated soils as well as the stratospheric ozone layer, and the protection of human health. This goal-oriented feature is evident in national as well as international law. It is apparent also when legal approaches to managing environmental problems are compared with economic or market-based instruments, such as emission trading, environmental taxes and voluntary agreements and codes of conduct. National statutes and international treaties, standards, instruments and procedures are assessed with these underlying objectives in mind, and mainly analysed in terms of effectiveness and achievability of the set objectives. Even sustainable development, as an overarching societal objective with obvious environmental connotations, reflects this goal-oriented conception of environmental law and policy.

Yet, environmental law also involves priorities, conflicts and clashes of interests – and concerns for justice and fairness. In fact, any drafting, negotiation, adoption, application and enforcement of environmental laws – indeed comprehending environmental law in general – induces justice considerations: i.e. concerns for the distributive and corrective effects of laws and decisions pertaining to health, the environment and natural resources, as well as concerns for the opportunities of those potentially affected to participate in such law-making and decision-making in the first place.

Environmental law and justice across state borders

State borders do not mark out correctly who is concerned by decisions, acts and omissions – whether by public authorities or private entities – that affect health and the environment. Nor do state borders adequately define how far pursuits for justice should go in such cases. Rather, basic legal conceptions of state sovereignty and responsibility, jurisdiction and civil liability are challenged by transboundary effects on health and the environment and by transboundary corporate structures; and these features trigger particular concerns of procedural, distributive and corrective justice across state borders.

Situations of transboundary effects on health and the environment range from local settings, where only two neighbouring countries are involved, to global contexts; and they pertain to pollution, use of natural resources, stress on ecosystems, and trade in hazardous goods and wastes. These transboundary features reflect the current paradigm of international environmental law, which is primarily focused on inter-state concerns. Yet, as I will argue, it is not sufficient to consider these cases as inter-state only. From a justice viewpoint, it should be considered which interests are taken into account and who is capable of participating in decision-making and challenging decisions concerning activities with transboundary impact. Are they the interests only of those persons in the state of the activity or also those affected across state borders? And in which state, that of the activity or that of the harm, should justice be pursued?

Transboundary subjectivity rather than effects

Corporations, just like pollution, are becoming increasingly transboundary, and they spread in increasingly complex structures. Economists and sociologists debate whether corporations, for the most part, operate as multinational enterprises (MNEs) with some national base, as transnational corporations (TNCs) active in many countries but without a particular link to any country, or through even more diffused international networks or clusters of firms, subunits, suppliers, and subcontractors. There is no general agreement on how to label the various forms of transboundary economic organisation, and neither does the given distinction reveal the diversity of corporate structures. Rather, the difficulty in terming and defining them reflects the multitude of structures and relationships.

A significant factor when allocating responsibility for environmentally harmful activities is whether one corporate unit is wholly or partly owned or controlled by another, or formally a unit within a well-defined enterprise. Yet, new corporate relations and modes of economic organisation may influence the legal conceptions of responsibility and corporate governance, so as also to make a corporate entity responsible for the conduct of another entity that is formally autonomous but actually dependent on the former.

It is a truism that corporations – whether active in one, two, or more countries – cause harm to health and the environment, and that the adverse effects may extend beyond the borders of the state of the activity.