Académique Documents
Professionnel Documents
Culture Documents
environmental law?
ID: 0521280 -2-
This essay will present the argument that the central problem facing the
due to two diametrically opposing philosophies which are inherently mutually exclusive,
that is: capitalism and environmental protection. It will be shown how the central pillar of
capitalism; private property, has juxtaposed itself into international norms as the
relatively modern concept of sovereignty and that this concept is the international legal
Even when such agreements are made the microscopic application and
which drive firms to produce goods at the lowest possible cost in order to make
supernormal profits and on an international scale drive countries to compete for similar
ends. The result is that capitalists corrupt international environmental principles and law
and rarely apply them adequately. At the enforcement stage countries are unwilling to
equity and the medium of international direction - the law is inherently bias towards
economic interests and thus needs to be reformulated in order to give effective protection
Sovereignty
ID: 0521280 -3-
International law is inherently weak and cannot supply sufficient protection for
the environment for one main reason – sovereignty. The insistence on states on
enforcement or sanctions for non compliance. While the international community has
tried to address the issue the reformations are merely rhetoric which demand national
implementing measures.
Much like the owner of land whom can exploit resources of the land as he pleases - the
ruler of a sovereign state has the right to exploit their countries resources as they please.
problems do not care for sovereign borders. Consequently the strict operation of a nation
state system is incompatible with environmental protection. Yet sovereignty is the most
fundamental particle of the International Law atomic structure; leading inexorably to the
isolation.
The Tuna Dolphin case2 in 1991 substantiates this claim where a GATT panel held
that a country can only control the consumption of a natural resource “only to the extent
that the production or consumption is under its jurisdiction”3 Earlier in 1962 The UN
General Assembly held “sovereignty over... resources must be exercised in the interest[s]
… of the well being of the people of the state concerned,”4 clearly a anthropocentric
1
See Philippe Sands, Principles of Environmental Law (1995), Vol. I p187-188 for examples.
2
chauvinist viewpoint, in isolation from the environment as a whole. This has lead some to
Law is first and foremost international law: Its fundamental unit is the state, not the
nature.”5
times. Principle-21 of the 1972 Stockholm Declaration is the embodiment of this. While
it does uphold sovereignty, it does specify responsibilities for states that they “do not
cause damage to the environment of other states”. As Sands has commented “Principle-
incorporating the much cited ‘good neighbourliness principle’. While only a principle it
has been referred to in the 1992 Baltic Convention, wholly incorporated in the 1972
London Convention, 1979 LRTAP Convention, 1985 Vienna Convention and Article.3 of
the 1992 Biodiversity Convention wholly re-enacted Principle-21 and in many more
treaties7. Principle2 of the 1992 Rio Declaration rehashed Principle-21 and is mentioned
on a formalistic side very impressive. It should be noted though while the concept of
good neighbourliness has propagated the central tenet of the international legal system –
UNGA Res.1803(XVII)(1962)
5
http://www.ecovitality.org/badlaw.htm
6
ibid p193
ID: 0521280 -5-
As Morgenthau has pointed out8 there is a paradox, how can international law impose
constrains upon nations when sovereignty precludes a sovereign state being subject to
legal restraints? He concluded that sovereignty only incompatible with a strong and
effective system of international law but the concept is consistent with a weak and
ineffective legal order because “sovereignty is the very source of that decentralization,
weakness and ineffectiveness” 9 From Morgenthau’s lucid conclusions it is clear that even
though the principle emerging from Stockholm and subsequently adopted by international
instruments on the surface seems to resolve the paradox it is merely a Planckian step
forward and far greater institutional and ideological reforms need to be conducted for
effective protection.
formulation. The common criticism is that international agreements do not secure real
environmental protection because their design and operation ultimately effect national
bargaining and often they do not reach a consensus on anything but a lowest-common-
denominator basis which is unsatisfactory. This combined with the argument presented in
the introduction - that by the time protection envisioned in the principles and treaties
reaches national levels it is massively watered down and corrupted with capitalist profit
motives - there is little protection afforded to the environment. The actual time that these
Thomas J. Cioppa, “The Sovereign-State System, International Law and Institutions, and Environmental
Protection: Present Incompatibilities and Future Possibilities”, www.ciaonet.org/isa/cit01/
9
Morgenthau, H.J. and K.W. Thompson. 1985. Politics Among Nations: The Struggle for Peace and Power.
6 th ed. New York: Alfred A. Knopf p329 cited in Thomas J. Cioppa Op Cit. fn8
10
negotiations11 to adopt. Even worse is the implementation time between adoption and
“environmental protection strategies that made sense when they were first proposed
represent ‘too little, too late’ by the time they are implemented”.12 The remark turns out to
Kyoto’s emissions treading scheme, other states can effectively ‘cheat’ the targets by
purchasing Russia’s ‘hot air’. Legally the parties have fulfilled the targets via a legal
mechanism but environmentally speaking they have cheated, the proverbial legal
‘loophole’ in effect. Additionally the benefits set for developing nations are actually offset
by the rise in developing nations emissions by 2012.13 Barret eloquently summarises the
argument “The Kyoto targets simply reflect what was politically feasible at the time and
not what is appropriate from an ecological standpoint”14 What is distressing is that what
was ‘political feasible’ meant the United States refused to sign. One wonders how weak
the goals would have had to be in order for America to be signatory also.
11
Justine Thornton & Silas Beckwith Environmental Law (Sweet & Maxwell, 2nd ed)., p58
12
Susskind, L.E. 1994. Environmental Diplomacy: Negotiating More Effective Global Agreements. P14.
13
Barret, S., ‘Political Review of the Kyoto Protocol’ ((1998) 14 Oxford Review of Economic Policy 4,
p20) Emphasis added.
ID: 0521280 -7-
Development (SD) aims to do for the trade off between economic development and
however, its notions of equity have been corrupted by capitalistic economic formalism
which purports to uphold principles of SD but is not consistent with principles of inter
and intra generational equity. The classic lawyer may argue that SD is not hard-law and
should be left for the economists, ecologists and politicians to discuss but this argument is
importance to courts, when interpreting and Parliaments, when legislating with it. The
question posed asks about effective environmental law the principles of SD can either be
incorporated weakly or strongly, the later obviously affording more effective protection to
the environment. On two fronts then we are justified for delving deeper.
initially an ecocentric concept with little attention to economic growth. Seven years later
the Brundtland Report catalysed the notion so much so “that it has been taken up by
almost every international institution, agency and NGO”15 since. The essence of SD is the
much cited “development that meets the needs of the present without compromising the
ability of future generations to meet their own needs”.16 For the first time economic
15
World Commission on Environment and Development (WCED). Our common future.: Oxford
University Press, 1987 p. 43.
ID: 0521280 -8-
agenda for Rio. Principle-1 and 3 enshrined inter and intragenereational equity and
terms of economic development. While these are only principles they have been given
legal effect everywhere from the Convention on Climate Change17 to the Polish
definitions of the concept - David Pearce et all provide over 40.21 Sadly it is due to its
vagueness rather than environmental protection goals that the concept has promulgated so
ferociously leading to not only ineffective environmental protection but poor realisations
SD satisfies those on the extreme left and extreme right purely because the extremes can
pick and chose what they wish to emphasise and ignore the rest.
17
Article 3
18
Article 5
19
Article 2 & 6
20
David Pearce et all Blue Print for a Green Economy pp173-85 cited in Neil Carter Op. Cit.
22
S. Lele, ‘Sustainable development: a critical review’, World Development Volume 19, No. 6 (1991), pp.
607-621
ID: 0521280 -9-
sustainability reasons that future generations should have the same ability to create
wealth as we have and that future generations can be adequately compensated for loss of
environmental assets with alternate sources of wealth. Strong sustainability on the other
hand views the environment as offering more than economic potential which cannot be
replaced with man made capital thus future generations should not inherit a degraded
environment.
with notions of equity because it involves the comodification of natural resources that are
things and since income and wealth distribution is far from equal how can weak
sustainability be consistent with intergenerational equity? Equity does not mean equal but
numerous soft law sources and at least one hard law convention. 25 Schemes such as a cost
benefit anaylsis and internalizing externalities are the methods used to comodifiy
environmental goods and ostensibly give effect to principles of SD, but they are anything
23
Sharon Beder, ‘'Costing the Earth: Equity, Sustainable Development and Environmental Economics’, New
Zealand Journal of Environmental Law, 4, 2000, pp. 227-243 available online
http://www.uow.edu.au/arts/sts/sbeder/esd/equity.html
24
1993, Social Equity and the Urban Environment, Report to the Commonwealth Environment Protection
Agency, AGPS, Canberra, p.2. cited in Sharon Beder Op. Cit.
25
Article 3 of CCC
ID: 0521280 - 10 -
but equitable or even accurate for that matter. This is indeed a concern for International
reaches national level into merely extending market values to incorporate the
environment into the wider economy leading to insufficient environmental protection and
inadequate help to developing countries. But why exactly is extending market values poor
over used because they are not priced. If a price is attached then consumption will fall.
The second strand of thought is that economic activities causing damage to the
environment (externalities) are not correctly priced by the free market. Therefore
governments must intervene in the market to ‘internalize the externality’ and alter the
price according the true costs of production of that good. This is brilliant in theory and
indeed the whole basis of economics is allocation of scare resources to infinite wants, so
the environment would fit in nicely because it is indeed a scare resource. However, the
problem comes in quantification. Poor methods of valuation of the environment are used
because the price cannot directly be ascertained using the fundamental forces of supply
and demand. Valuation can be done via survey but whatever method used: interview,
travel cost, or hedonic pricing all methods are inequitable.26 The reason is obvious - the
price people attach to a good is determined by their wealth and income. Low income
26
earners will attach a lower value to; say a park, than a high income earner. This does not
mean they value it any less in real terms. At an even more fundamental level how likely is
a person to give an accurate answer when they are not forced to part with their money?
These valuations are then used in cost benefit analysis. For example in Wisconsin, USA it
was established that preventing the extinction of striped shiner fishes would be worth
$12million it would be deemed economically efficient to proceed with it and the losers
benefit analysis are major statutory planning tools and evidenced in EC legislation 29 and
These legal sources and policies have fallen into an ‘economic formalism’ trap. As
Herb Thompson argues - before an economist can even construct a cost benefit table they
Methodological fuzziness is the fact that SD has not been defined in any legislation. He
goes onto argue “the apparent objectivity of a cost-benefit analyses is the result of
Herb Thompson "Competitive Markets and the Environment: A Critical Examination of Orthodox
Economics", with S. Avenell, Democracy and Nature, Volume 3, No. 3 (Issue 9), 1997, pp. 107-128.
Available online http://www.aucegypt.edu/faculty/thompson/herbtea/articles/DandN.html
28
US National Environmental Policy Act of 1969, Canadian Environmental Assessment Act 1994
31
market does not exist. Missing markets “surely raise doubts about the abilty of market
prides itself on its positivistic predilection however, they spend much of their time
imagining perfect worlds and “the tautologies resulting form their models are then
because as Sharon Beder argues - it makes the environment an apolitical issue because it
lets the free market decide, not votes. This simply is not appropriate protection for the
the principles are formulated they are given effect via economic methods.
The Bruntland report wrote “those who are poor and hungry will often
ibid
33
ibid
34
Soft law: The Rio Declaration, Agenda 21 and harder law - 1968 African Convention, Convention on
Biological Diversity and DC
36
Equity has been maintained in formal declarations and normative instruments via
Rio and Article-3 of the CCC take into account each states contribution
the Convention divides countries into two main groups (1) those that
(1) created more emissions and has more capability - both technically
Penang Charter of the Indigenous-Tribal Peoples of the Tropical Forests, Baguio Declaration
38
Sands Op. Cit. p217
39
Article 4(7)
42
Article 175(5)
ID: 0521280 - 14 -
Many different bodies have been setup to provide assistance but due to word
constraints not all will be discussed45. Indicative of most approaches is the Global
Environment Facility (GEF) which channels finance from richer to poorer countries to
fund environmental obligations. Since 1991 the GEF has given grants to more than 1,300
projects in 140 countries totalling $4.5bn direct and $14.5bn in co-financing46. The GEF
is the largest body for channelling funds and is the financial mechanism for many
43
Article 5
44
45
1972 UNEP Environmental Fund (UNGA res. 2997(XXVII) (1972)) ;1990 The Wetlands Fund
established for developing countries to implement the obligations under the 1971 Ramar Convention ; 1990
amendments to the Montreal Protocol established the Multilaterial Fund to provide financial and technical
co-operation including the transfer of technologies (A10A)
46
different treaties47. The projects are implemented primarily through the World Bank,
UNDP and UNEP. But this is where the problem begins. NGOs are suspicious of the
close relationship between the WB and GEF48 and “complain of the incomprehensible
the GEF secretariat.”49 NGO’s criticisms are significant; after all, they do not have
ulterior motives like political bodies. If they are saying this the impressive stats on
various funds websites may be actually fund concealed motives. While there is practical
The EC too has financial resources available to its members. The LIFE
programme established in 199250 was purely an intra community funding program but
was amended51 and introduced LIFE-Third Countries for Mediterranean and Baltic Sea
accounted for 5% of the entire budget53 it can be hardly considered as lending assistance.
The EC also has the Cohesion Fund which co-finances projects concerned with the
environment54 to members states with a GDP less than 90% of the Community average.
47
UNFCCC, Caragena Biosafety Protocol, CBD, Stockholm POPs Convention and others
48
Charlotte Streck, “The Global Environment Facility - a Role Model for International Governance”, Global
Environmental Politics, Vol. 1, Issue 2 p88
49
ibid
50
http://europa.eu.int/comm/environment/life/life/third_countries.htm
53
http://europa.eu.int/comm/environment/life/life/historyoflife.htm
54
1164/94 Article 3
ID: 0521280 - 16 -
Even more obviously than with the financial mechanisms, the transfer of
with the insistence at recognising intellectual property (IP) rights. The formal law
demands technology transfer yet enforces IP rights. Lending more evidence to the central
argument that international law’s core problem is capitalism. The BDC is most telling. It
encourages transfer of technology in Article 16(1) however, it states the transfer should
take place under terms “which recognise and are consistent with the adequate and
promotes technology transfer but takes “into account the need to protect [IP rights].” The
central problem is IP rights have been established as an international norm for over a
protection by overriding IP rights, if those rights “would cause serious damage [or] threat
the principle is not defined anywhere. It is unclear what would constitute “serious
Yet again we have law that is formally recognising environmental law principles
but is primarily concerned with protecting property. The formulation and drafting
problems presented thus far may be problematic but even those difficulties pale in
Enforcement
55
Article 16(2)
56
e.g. recognised under the Convention for the Protection of Industrial Property and the Patent Cooperation
Treaty. For a full list see Sands p747 at fn120.
ID: 0521280 - 17 -
The EC provides an excellent case study for problems with enforcement. It has
programs and by 1996 passed over 200 pieces of legislation57. Its constituting treaties
passed is poorly enforced. It acts as a good case study because as with international
also require implementing by Member States (MS). What we discover for the EC must
then apply elsewhere and acutely in developing countries where the legal and regulatory
formal obligations to pass legislation purporting to give effect to directives. Thornton and
Beckwith argue that the discretion given to MS often circumvent the purpose of the
directive,59 the Commission themselves agree60 citing delegation problems which lead to
1970s still pose continuing enforcement problems.62 Under A211EC it is the European
57
COM(96)500 at Para 1
58
A175 EC
59
making sure MS’s Statutes comply with directive provisions. At last resort A226
proceedings are initiated, the statistics on A226 proceedings for environmental law are
impressive63. But as the Commission have concluded “the procedure under Aritlce-169
[new-226] may be lengthy and formal, and … not designed with environmental law cases
in mind”. Why is this? Because the Commission only has standing to bring proceedings.
To their credit though, the third pillar of AARHUS which demands public access to
limited staff in dealing with infringement complaints. Pre-enlargement there were only 18
conjecture purely for reasons that there is no central authority that measures breaches.
Eco Vitality65 argue that developing countries have ulterior motives for ratifying treaties.
example NAFTA trade negotiations were derailed unless Mexico upgraded their
documents demonstrating they have the appropriate legal framework; not enforcement
over environment is a real problem for enforcement the rationale is obvious. Developing
countries want to step out of poverty, the only way they see of doing this is
economic growth. Unfortunately this is the crux of the problem and leads us to our
conclusion.
Conclusion
protection because they inhibit environmental law at every single level. As has been
shown on the macroscopic level the formulation is hindered because of sovereignty. The
transcend national boundaries. Even when such agreements are made they take far too
long - why is this? Because states are essentially in competition with one another – they
do not want to yield too much. Finally when the international negotiations are done what
we are left with is a comprise, heavily bias to capitalism leading to a broad unspecific
‘law’ that isn’t ecologically sufficient nor timely or even worthy of the tag ‘law’
Enforcement is even a bigger problem, because capitalism requires firms and countries to
compete. Anything that hinders their competitive level is unlikely to be enforced strongly.
66
ibid
ID: 0521280 - 20 -
Even when those whom try to enforce environmental law they are confronted with locus
In the final analysis at every single level from devising to enforcement to transfer
environmental law is at ends with an already entrenched system of capitalist norms - both
Bibliography
Philippe Sands, Principles of Environmental Law 1st Ed (1995)
Thomas J. Cioppa. ‘The Sovereign-State System, International Law and Institutions, and
Environmental Protection: Present Incompatibilities and Future Possibilities’,
www.ciaonet.org/isa/cit01/
Justine Thornton & Silas Beckwith Environmental Law (Sweet & Maxwell, 2nd ed
Barret, S., “Political Review of the Kyoto Protocol” ((1998) 14 Oxford Review of
Economic Policy
Sharon Beder, 'Costing the Earth: Equity, Sustainable Development and Environmental
Economics', New Zealand Journal of Environmental Law, 4, 2000, pp. 227-243 available
online http://www.uow.edu.au/arts/sts/sbeder/esd/equity.html
Charlotte Streck, “The Global Environment Facility - a Role Model for International
Governance”, Global Environmental Politics, Vol. 1, Issue 2