An Ecological Approach to International Law
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An Ecological Approach to International Law

Responding to the Challenges of Climate Change

Prue Taylor

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eBook - ePub

An Ecological Approach to International Law

Responding to the Challenges of Climate Change

Prue Taylor

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About This Book

An Ecological Approach to International Law shows that international environmental law is fundamentally flawed and not equipped to meet global challenges. The book examines international legal responses to global climate change by analysing key concepts such as the doctrine of state sovereignty, the law on state responsibility, environmental rights and common heritage of mankind.

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Information

Publisher
Routledge
Year
2008
ISBN
9781134715855
Subtopic
Geografia
Edition
1

1

INTRODUCTION

Once the realm of imagination is revolutionized, reality can no longer resist.
Hegel1
The earth and its inhabitants are facing a crisis of an unprecedented scale. Survival no longer depends only upon political stability and the control of means of mass destruction; it is now also dependent upon our ability to restore a balanced biosphere and ecosystems. The list of environmental perils is familiar: ozone depletion, climate change, desertification, deforestation, air pollution and acidification, toxic waste, water pollution, exhaustion of non-renewable resources, loss of biodiversity, species extinction. The list is not exhaustive. However, all these and other environmental problems are interrelated and cannot be dealt with in isolation from each other. Nor do they obey national boundaries. The environmental crisis is global in nature, thus requiring global strategies for its solution.
These global strategies, as urgent as they may be, are not readily at hand. The earth is one, but the world we live in is not. It is a world of hundreds of cultures governed by nearly two hundred states. Each state has its own cultural context, following its own political ambitions. A commitment to global strategies may not be an ambition at all. In many ways states compete with each other – for the prosperity of their national economy, for the protection of their citizens, and for the exploitation of natural resources. Traditionally, concern for the welfare of other nations is of little use for a nation's own welfare. And international law, with the idea of a sovereign nation state at its centre, has reflected this.
It is a relatively new experience that states seek something more, or something else, than competition. Since the earth has now been experienced as round and limited with no territory left to be conquered, states have little choice but to compromise and settle for prosperity within limitations. Autonomy is being complemented by interdependency, competition by international co-operation. Moreover, this century's lessons of two world wars, nuclear threats and global environmental degradation have shown that one's own survival has become dependent on the survival of others. Are we, therefore, experiencing a shift from competition to global co-operation? Is international law transforming to transnational law?
This book attempts to answer these questions by confronting two seemingly conflicting interests – the interest of states to act autonomously and their interest to co-operate. The former is epitomised by the traditional concept of international law, the latter is exemplified by the common concern for climate change. International law relies on state autonomy, climate change on state dependency, yet both are to be reconciled.
International law is in the initial stages of formulating a response to a global challenge which in its nature and magnitude surpasses all other issues of common concern. No other environmental hazard has stimulated international debate so much as global climate change. The prospect that human impact may lead to the instability of the earth's climate and that this threatens the entire biosphere is fundamental and far-reaching. It is fundamental because of the global effects of individual human's behaviour, and far-reaching because of the complex nature of a solution. Without an understanding of these complexities the international community has no chance of finding a solution.
Climate change is a challenge to each individual as much as to the state. However, while individuals may be capable of developing global responsibility through their own choice, it is somewhat illusionary to expect states to develop global responsibility. States are not conscious entities, not living beings, but social institutions. They cannot initiate change themselves, rather they reflect and execute the change made by individuals, groups and society. Similarly, international law is not itself capable of bringing about change. International law is merely a body of treaties, principles and institutions. Its use is determined by the ability of states to incorporate international obligations within their municipal law and, at the same time, respond to new challenges. Implementation and innovation are, therefore, equally important for international law's success.
In negotiating and adopting the 1992 United Nations Framework Convention on Climate Change2 the international community has accepted the challenge of climate change. Obligations to stabilise the earth's climate are now part of international law. However, any substantial progress depends on binding targets and timetables and their enforcement. Five years after signing the Climate Change Convention states have made little progress in this respect. Only some are in the process of developing national climate policies. On the other hand, it has been clear from the outset that the challenge of climate change cannot be met without changes in the design of international law. The 1989 Hague Declaration on climate change called ‘for a new approach, through the development of new principles of international law, including new andmore effective decision-making and enforcement mechanisms’.3
Over the last ten years the body of international environmental law has grown considerably. And with this growth the body has changed. New concepts have been developed including the concept of sustainable development, the precautionary principle and the principle of intergenerational equity. International environmental law is, no doubt, the most dynamic area of international law. The first, and now standard text book in this area rightly described international environmental law as having ‘had the greatest impact, ultimately constituting a powerful factor pushing towards a transformation of the fundamental basis of international law’.4
What does the ‘transformation of the fundamental basis’ entail? Will it lead to transnational law? And, more importantly, what is the ‘fundamental basis’ of international law? Any transition can only be successful if the original basis is clearly understood. Before embarking on new principles, we should be quite clear about the inadequacies of the existing law. In particular, bearing in mind the slow processes by which international law typically develops, the urgency of the situation, and the high stakes should we fail to implement effective responses, a full appreciation of the deficiencies of existing principles and concepts is critical to the further development of new international environmental law.
International law typically develops only slowly, reliant on the consensus of states, the adaptation of old principles to new situations and the slow emergence of new principles. Without identification of the existence of, and the underlying reasons for, existing inadequacies of international law, we face the very real risk of continuing our mistakes into the future. For this reason one of the main objectives of this book is to analyse and criticise existing and evolving international environmental law. Issues to be discussed include the principles and instruments which international law has available to meet global challenges, whether these are sufficient and, if not, why not.
Among the key principles and concepts in international environmental law are: the concept of state responsibility (chapter 3); international liability for acts not prohibited by international law (chapter 4); human rights with respect to the environment (chapter 5); and the concept of common heritage of mankind (chapter 6). These concepts represent diverse and yet commonly used approaches to environmental degradation. They are, in particular, relevant to the international legal regime on climate change.5
The analysis undertaken demonstrates that existing, and to a lesser extent evolving, principles contain many inherent limitations which create large gaps in the fabric of international environmental law. As will be seen, these gaps can largely be attributed to the concept of state sovereignty, one of the cornerstones of international law. One of the consequences of state sovereignty is that the law fails to adequately recognise, and thus protect, the global environment. But, a proper assessment of the law demands that we look much deeper than state sovereignty.
We must also consider the ethical basis of current international law (chapter 2). The book suggests that it is here that we find the root cause of both the environmental crisis and the inadequacies of the law. In essence it will be suggested that the prevailing ethic, upon which the law is based, is human-centred (or anthropocentric) and that this ethic has directly contributed to the environmental crisis. Because our laws reflect and affirm this environmental ethic they have become part of the problem – international environmental law merely perpetuates the crisis and is reduced to a means of suppressing the symptoms.
The dual analysis undertaken in this book (of law and ethics) can perhaps best be explained by brief reference to the process by which the study developed from its original inception. It began life as a review of existing and developing international law relevant to climate change, limited in scope to both ‘hard’ and ‘soft’ law sources. It was not long before it became apparent that not only was this law deficient as a response to the greenhouse effect, but that in addition we had reached a point in the development of international environmental law whereby some 900 multilateral and bilateral international agreements existed, but we still faced a rapidly escalating degradation of all the earth's major life support systems.6 Perhaps some isolated environmental fires had been brought under control, but there was no denying that matters had escalated in scale and magnitude. Why? Of course, in the case of climate change one can trace the cause to ever-increasing emissions of greenhouse gases (chapter 2). But that only begs the question; what causes humanity to behave in a manner which enables it to dump its waste into the biosphere in such a way and to such an extent that it has imperilled not only its own continued existence, but that of much of life on earth? In the search for the answer to this question one is naturally drawn to the debates of environmental philosophy and theory. The second part of chapter 2 explores these debates in a way which provides a framework for both an assessment of the law and for a suggested new principle of international environmental law. It is presented in a manner which should enable newcomers to the field of environmental ethics to grasp the basics. In the past, students, teachers and practitioners of municipal and international environmental law may have been able to limit the ambit of their knowledge to the law. This is clearly no longer the case. As Alexandre Kiss and Dinah Shelton point out, in the introduction to their text book: ‘ethical and philosophical concepts are crucial in understanding the actual nature of environmental law and the challenge it poses to international law’.7
The dual analysis undertaken will also demonstrate that international environmental law is on the verge of major change. It faces a shift from its traditional emphasis on the protection of individual interests and sovereign rights of states to the protection of collective interests.8 At present these collective interests are predominately defined in human-centred terms but, as we will see, developments in both international and municipal law suggest that this focus is changing. This prospect of change invites us to readdress such fundamental questions as: Why protect the environment? For whose benefit? What legal obligations exist? What is their basis? Who owes them? How should they be enforced?
As with all major changes, there exists a ‘tension’ between up-holders of the old and the proponents of the new. This tension means that evidence of the shift is not immediately or clearly obvious, at times it may appear that the up-holders of the status quo are maintaining and even strengthening their ground. To a large degree we are left at the mercy of time and events, it is hard to predict how revolutionary these changes will be and when they will occur. At the beginning it is always, in every sense, difficult to predict the end.
In summary, the book will contend that international environmental law is inadequate not only because of a variety of particular limitations, but because, in confirming the prevailing ethic, it perpetuates the environmental crisis. It is thus the product of the thinking with which we created the problem. And as Einstein observed: ‘The significant problems we have created cannot be solved at the same level of thinking with which we created them.’9
Thus, the book's second primary objective is to suggest a new principle of international law, based on a different level of thinking, a different ethic. This new principle could be used as a guiding concept, for instance by implementing it into a global environmental treaty.
The Chinese term for ‘crisis’ is wei-ji. It is composed of the characters for ‘danger’ and ‘opportunity’.10 In the context of an international legal response the ‘danger’ is in continuing to apply traditional international law (by adaptation to give it modern meaning and application) and thus perpetuating the environmental crisis to the point of no return. Alternatively, the ‘opportunity’ lies in realising the reality of a unified biosphere, recognising the flaws in our ethics, our thinking and in current international environmental law and in developing new ethics, thinking and principle(s) to guide responses to the problems we have created. It is acknowledged that the new principle suggested (chapter 6) will require a radical rethinking of such fundamental principles as state sovereignty. However, can we afford not to make the most of the opportunity presented?
The points made above can perhaps be best illustrated by the mind map in figure 1, a technique for organising thought which embraces holism and interrelationships, key themes of this book.
Looking back, the 1992 United Nations Conference on Environment and Development (‘UNCED’) was heralded as the opportunity this century for international environmental law to meet the challenge posed by human degradation of the earth's support systems. In addition, it was to be one of the key events in the 1990–1999 United Nations Decade of International Law. Today we know that in many ways the challenge was not met. The UNCED process fell short of its task and can not, at least presently, be pointed to as the turning point for the law. However, UNCED and the UNCED process reveal some of the lines of conflict in the progressive development of the law (chapter 7).
image
Figure 1
One cannot deny that law is an important component of a strategy for change and reform. However, from the outset it is important to remind ourselves of some ...

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