ENVIRONMENT GLOBAL WARMING

International Environmental Law Section B: General aspects II

GLOBALIZATION AND INTERNATIONAL LAW

The notion of globalization has entered formally the vocabulary of international environmental law with the WSSD in 2002. In the Plan of Implementation, under the section “Sustainable development in a globalized world,” it is mentioned that:

Globalization offers opportunities and challenges for sustainable development . . . globalization and interdependence are offering new opportunities to trade, investment capital flows and advances in technology, including information technology, for the growth of the world economy, development and the improvement of living standards around the world.

It is also mentioned that:

Globalization should be fully inclusive and equitable, and there is a strong need for policies and measures at the national and international levels, formulated and implemented with the full and effective participation of developing countries and countries with economies in transition, to help them to respond effectively to those challenges and opportunities [emphasis added].

Globalization takes place as economic globalization, cultural globalization, and communications globalization. Economic globalization has been defined as the: integration of national economies into the international economy through trade, direct foreign investment (by corporations and multinationals), short-term capital flows, international flows of workers and humanity generally, and flows of technology.

Globalization has been blamed for many of the ills of the world today. Antiglobalizers claim that globalization is responsible for the increasing gap between the rich and the poor, the unfair labor standards in the developing world, and the deterioration of the environment. They generally equate globalization with the blind faith in free markets. The World Trade Organization, the World Bank, and the International Monetary Fund have been castigated for the uncritical pursuit of free market policies, neglecting the need for the creation of a social safety net that would shield those most vulnerable in our societies from the abrupt changes that globalization entails.

These institutions, the discontents with globalization claim, are imposing changes in the developing world in the style of untrammeled free market principles without paying due attention to the importance of timing and sequencing reform. Timing and sequencing reform could help avoid social disruption that undermines the very social fabric of developing societies.

The discontent with globalization is expressed as anti–free markets and anticorporation.

Free markets may have triumphed as the economic system of the twenty-first century but have failed to capture the hearts and minds of people who crave for social justice.

The anticorporation strand comes from the belief that corporations have taken and will continue to take advantage of the lower labor and environmental standards in developing countries transferring, thus, pollution to other localities and engaging in inhumane labor practices. Antiglobalizers wish to level the playing field so that environmental and labor standards – as they have been established in developed countries – are respected uniformly all across the world and that the race to the bottom is avoided. Furthermore, discontents with globalization have a firm belief in the limits of markets and share a fear that markets spur commercialization at the expense of value systems of societies.

Defenders of globalization have claimed, by contrast, that overall globalization has increased wealth and has served the poor in countries such as India and China with the largest poverty numbers in the world. Both the countries had followed an isolationist trade stance in the 1970s. They reverted to more open economic policies in 1980s and 1990s, having as a result a much higher growth rate. With regard to environmental standards, defenders of globalization are quick to note that the race to the bottom has yet to happen. This is because environmental standards are only one of the multiple considerations that multinationals take into account when pursuing investment in different countries. Other considerations may be more paramount, such as labor costs, capital costs, infrastructure development, the weather, taxes and tax breaks, and political stability.

However, even defenders of globalization admit that globalization needs to be managed well in order to produce further desirable results. Such management of globalization involves the establishment of institutions that would provide a social safety net to support those affected mostly by the abrupt changes that globalization brings. It has been claimed that developing countries should be allowed to develop adjustment programs, when jobs are lost to foreign competition, the way developed countries have done in the past to protect their industries and workers. If developing countries cannot afford such programs, it has been proposed that the World Bank could fund such programs. Furthermore, some state intervention into agricultural policies should be allowed so that the farmers in the developing world are not wiped out by the vagaries of international trade.

PRINCIPLES

Sovereignty over Natural Resources

The sovereignty of a state over its natural resources is a principle frequently iterated in international treaties. States have made conscious attempts to expand their state sovereignty into areas or over resources that previously were considered the common heritage of mankind or simply free access areas. States expanded their jurisdiction over the seas by establishing Exclusive Economic Zones. Furthermore, states are attempting to extend their jurisdiction over the high seas as states that fish in the high seas are being forced to abide with the rules of regional fisheries organizations.

In the area of biodiversity protection, the assertion of state sovereignty has not always been effective and vocal but it has not been absent, either. States have been zealous of controlling their valuable biodiversity resources despite a declaration included in the International Undertaking on Plant Genetic Resources that plant resources are the common heritage of mankind. In the Convention of Biological Diversity (CBD), “common heritage” has become “common concern” and states have asserted property rights over the plants and other biodiversity resources that occur naturally within their territory.

What has generated this zealous nationalism has been the publicity surrounding the development of pharmaceuticals and other products from natural substances. Developing countries have claimed that it is unfair to have to pay high prices for pharmaceuticals and biotechnology products and would have not been invented without the substances derived from resources found in their territory. In other cases, it has been claimed that pharmaceutical companies have taken advantage of the knowledge of indigenous or local people without acknowledging their contributions to the development of a new product. Today, national sovereignty and control over the collection, dissemination, and exploitation of germplasm are the norm. This norm has been institutionalized in the Treaty on Plant Genetic Resources for Food and Agriculture.

Obligation Not to Cause Damage

The duty of states not to cause damage to the territory of another state is derived from the sovereignty of states. The obligation not to cause damage to the territory of another state, though, is not without qualification. Some polluting activities are bound to cause damage to the territory of other states and frequently such activities are legal. The obligation of states to prevent causing harm to other states, and liability that may ensue from the breach of that obligation, have been examined in detail by the International Law Commission.

Principles of Preventive Action and Precaution

The preventive approach is based on the idea that it is better to prevent environmental damage than to employ measures to restore the environment thereafter. The prevention of environmental damage has been le raison d’être of environmental policy. The preventive approach has been expanded by a relatively new principle – the precautionary principle. The precautionary principle is based on the premise that action on environmental matters should be taken even if there is a lack of total scientific certainty, often reversing the burden of proof and placing it on those who claim that an activity is not damaging.

In some cases, the existence of an environmental problem is evident, for instance, in the case of depletion of the ozone layer. In most cases, however, especially those that have to do with the impact of hazardous substances on human health or the environment, the scientific evidence may not be conclusive. In those cases, the precautionary principle advocates that some action is better than inaction.

The precautionary principle is an expression of the backlash against a tepid approach to environmental pollution that has often characterized international action. Many times, governments have procrastinated taking action on environmental problems and blamed their inaction on the lack of scientific certainty or faith in the assimilative capacity of the environment. This procrastinating attitude exacerbated many problems that could have been resolved had it not been “for the lack of scientific certainty” argument. One such obvious problem involves the discharge of untreated sewage at sea that polluted the Mediterranean. One would think that treatment of sewage before it is discharged into the sea would be a sensible investment option for most of the Mediterranean countries dependent on tourism, despite the lack of scientific certainly on the effects of sewage discharges into shallow waters. Also, in principle, some standards should be applied so that most industries and households do not discharge their wastes untreated in the environment.

The precautionary principle has been quite controversial because it advocates action despite the lack of scientific certainty. Taking action under such conditions could be costly or, even worse, could be proven wrong. The precautionary principle, nevertheless, has been repeated in many international conventions, and the Rio Declaration includes a precautionary approach. Some commentators view the principle as a guiding principle of international environmental law, but others adopt a more cautionary attitude. The United States has taken a skeptical approach toward the precautionary principle viewing it almost as a protectionist principle – a new nontariff barrier to trade. The European Union, at the other extreme, has transformed the principle into a constitutional principle, favoring a strong version of the principle.

Polluter Pays Principle and Equitable Sharing of Cost

The polluter pays principle was enunciated clearly in the international arena in the Rio Declaration. The principle basically demands for the person who is in charge of polluting activities to be financially responsible for the damage s/he causes. Some commentators have underlined that the principle has merely a rhetoric value because most polluters will be able to pass the costs of pollution onto consumers. Also, in most cases, it is difficult to identify the polluter.

Although the polluter pays principle has been enunciated in many international instruments, especially those adopted after 1992, when decisions are made about who should bear the cost of polluting activities it is not always followed. The Rhine Convention on Chlorides explicitly provides that the Netherlands, the country that is the recipient of pollution, undertakes to pay for some of the costs of pollution prevention.

The arbitration tribunal that interpreted the convention did not endorse the polluter pays principle. In the case of the Chernobyl disaster, none of the countries affected by the radioactive fallout demanded compensation for the damages they suffered from the Soviet Union. The Soviet Union denied any responsibility, claiming that measures undertaken by the affected countries were overcautious.

Furthermore, the International Law Commission in its Draft Articles on Prevention of Transboundary Harm from Hazardous Activities refers to the “factors involved in an equitable sharing of interests” between the polluting party and the affected party.

The International Law Commission guidelines on the prevention of transboundary harm from hazardous activities not prohibited by international law refer to the factors that must be taken into account for an equitable balance of interests between a polluting state and a state that is the recipient of transboundary pollution. In more detail, it is provided that for an equitable balance of interests between these two states to be achieved: “The degree to which the State of origin and, as appropriate, the State likely to be affected are prepared to contribute to the costs of prevention” must be taken into account.

This equitable balance of interests between the polluting state and the affected states seems to contradict the polluter pays principle.

Sustainable Development

The term “sustainable development” has been included in the Rio Declaration on Environment and Development to denote the need to balance environmental and development considerations.The original articulation of the principle is found in the Brundtland report, which stated that sustainable development means development that satisfies the needs of present generations without jeopardizing the ability of future generations to meet their own needs. In the WSSD, sustainable development was further articulated as having three pillars, namely: economic development, social development, and environmental protection.

The term “sustainable development” has been decried by some as devoid of content, as a concept used to express different and often disparate worldviews. And this is true, to some extent, as developed countries and their NGOs have used the principle to underline the importance of environmental values, whereas developing countries have used the principle to buttress their right to development.

Despite these misgivings, however, the principle has assisted in reconciling in one phrase what before seemed irreconcilable – namely, environmental protection and development. It is interesting to see how sustainable development has been used in local communities to articulate goals and indicators for future development, such as the goals of equity, economic vitality, strong community, quality of education, good government, decent housing, healthy people, efficient transport and land-use, protected natural resources, and minimal pollution and waste. Sustainable development has put on the negotiating table issues of economic and social development that are prerequisites for the quality of life and environmental protection.

The sustainable development concept, polluter pays principle, and precautionary principle may not be the principles that would resolve future environmental disputes. Other principles, such as that of equitable sharing of costs of polluting activities and a preventive rather than a precautionary approach, may gain ground. The principles, though, articulated as such, are informing the intellectual background of decision makers and are helping to establish a common credo among those who are involved in the everyday shaping of international environmental affairs. To dismiss these principles as too fluid and, thus, irrelevant would require a sort of imperviousness to their galvanizing effects as they reverberate from international to local agendas.

Equitable Utilization

The principle of equitable utilization of resources has been articulated in early judicial decisions regarding the sharing of freshwater resources. In the Lac Lanoux case, the tribunal articulated the duty of states to take into account other states interests before developing a resource by engaging, at least, in negotiations and consultation.

In the Oder and Meuse cases, the PCIJ referred to the community of interests and equality of riparian states so that no state acquires preference over others. The 1997 UN Watercourses Convention refers to the principle of equitable utilization of watercourses.

The principle of equity is difficult to pin down. Some commentators have viewed equity as a defining concept of international law. Other commentators have argued that equity considerations introduce an especially subjective element in the interpretation of international law.To most people, equity would mean a fifty-fifty allocation of a resource; to others, that those with priority in use must be protected; to still others, equitable allocation must be based on needs independent of the extent to which a resource is located within national boundaries. The application of equity in the different regions of the world has not been the same. The interpretation of equity depends heavily on the dynamics of interrelationships among countries that happen to share a resource. Equity frequently lies in the eyes of the beholder, especially if that beholder is a relatively more powerful state that refuses to compromise. In addition to the allocation of freshwaters, the principle of equity has been used in other allocation issues, such as the delimitation of the continental shelf.

The principle of equitable utilization of resources has found its articulation in the Biodiversity Convention. The Biodiversity Convention provides that countries must share equitably the benefits derived from the development of biodiversity resources. This principle of equitable sharing of benefits derived from biodiversity resources, though, has resisted practical articulation. Developed countries and many biotechnology companies fear that equitable utilization would involve distribution of profits coming from patenting biotechnology devices. Because of such concerns, the United States has not ratified the Biodiversity Convention. More recently, state parties to the Biodiversity Convention have engaged in efforts to define what an equitable sharing of benefits from the development of biodiversity resources would mean.

Common but Differentiated Responsibilities

The principle of common but differentiated responsibilities is a possible articulation of the concept of equity. Countries have differentiated responsibilities with regard to environmental protection because not every country has contributed to the same extent to environmental degradation and because not all countries have the same resources to devote to environmental problems. The principle of common but differentiated responsibilities has found apt articulation in the climate change and ozone protection conventions in which it is explicitly provided that developed countries should provide additional funding to developing countries in order to ensure the implementation of these treaties.

Human Rights

Human rights standards are not explicitly referred to in international environmental instruments. The right to development is offered as a counter position to environmental protection in the balancing of environmental and developmental goals. But, generally, there has not been an explicit reference to human rights as they may work in tandem with environmental goals. The Stockholm Conference and the WSSD refer explicitly to the goal of human dignity. The Rio Conference refers to the right to development that some have viewed as the force that should drive international law.

The focal point of the WSSD is the reduction of poverty. The goal of poverty reduction is not explicitly articulated in international human rights instruments but it is implicit in the right to development. It is also implicit in article 11 of the 1966 Covenant on Economic, Social and Cultural Rights, in which it is provided that parties to the covenant “recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing.” The insertion of human rights into the environmental discourse is important not only because human rights are the prerequisite for the quality of life sought by environmental protection. Eco-development, like conventional development, has entailed in some cases neglect for the needs of people whose interests do not lie within the eco-development agenda. Forcible exclusions of people from what are seen as naturally pristine areas have been executed by many governments in the developing world. Environmentalism has been used by certain elites to perpetrate suppressive policies that, otherwise, would have not acquired approval in international circles.

The protection of human rights should ideally provide the threshold for the pursuit of development including eco-development. Threshold human rights standards would involve the basic human rights standards, such as:

• The right to life, liberty, and the security of person;

• The right not be subjected to torture or cruel, inhuman, and degrading punishment;

• The right not be subjected to arbitrary arrest, detention, and exile;

• The right to effective remedies before national tribunals.

Commentators have proposed the articulation of a right not be displaced and the use of such right to oppose government policies geared toward involuntary displacement.