LJIL Symposium Vol 25-2: Fairness in International Environmental Law – A comment by Mickelson

[Karin Mickelson is an Associate Professor in Law at the University of British Columbia]

This post is part of the Leiden Journal of International Law Vol 25-2 symposium. Other posts in this series can be found in the related posts below.

It seems a bit dull to kick off an online commentary with a resounding “I agree”, but that is precisely how I am tempted to respond to Mario Prost and Alejandra Torres Camprubi’s “Against Fairness? International Environmental Law, Disciplinary Bias and Pareto Justice.”  When invited to comment, I assumed that Prost and Torres Camprubi’s analysis would either represent a critique of views that I hold dear, thus giving me an opportunity to defend them, or at least overlook some of those views, and thereby provide an opening to express them.  Instead, I find that the authors have provided a succinct, persuasive and eloquent analysis of how international environmental law has treated questions of fairness in general, and the concerns of the global South, in particular.  Rather than focus on trivial areas of disagreement, I have chosen to highlight one aspect of Prost and Torres Camprubi’s analysis that I found particularly compelling, as well as one area where I feel that they perhaps did not go far enough in raising the alarm.

To begin with, I must commend Prost and Torres Camprubi for being willing to talk about the South at all.  For it seems that everywhere one turns these days, one is confronted with assertions of the meaninglessness of the North-South dichotomy and the need to move beyond outdated notions of this kind.  While this is not at all unfamiliar to those of us who lived through the so-called “end of theThird World”, I still find myself baffled by how widespread this perception is.  What is perhaps even more surprising is just how easy it seems to be to dismiss any assertions of Southern solidarity or commonality. There seems to be absolutely no embarrassment about characterizing these assertions as the products of either (a) a lack of awareness of drastically changed global circumstances, (b) a lack of intellectual sophistication, (c) blatant self-interest, or (d) all of the above.  Ironically, these dismissals of Southern solidarity seem to coexist quite happily with what Prost and Torres Camprubi characterize as an essentialist construction of the South that denies its plurality and diversity, papering over the differences between and within states.  (You would think that it would be impossible to have it both ways, but here’s how it’s done: when it comes to listening to some kind of collective voice or assertion of agency, there is no such thing as the South, but if you want to make sweeping generalizations about lack of environmental awareness, generic “developing countries” fit the bill.)

While delighted that Prost and Torres Camprubi are unwilling to relegate the South to the dustbin of history, what I especially appreciated was their emphasis on the need to engage with environmental resistance within the South, and to grapple with how environmentalism can take different forms in different social contexts.  (I also applaud their willingness to contrast this resistance with Northern apathy and unwillingness to change unsustainable patterns of consumption and production; while they might not go so far as to label such attitudes as “anti-environmentalist,” it would perhaps not be much of a stretch to do so.)  This seems to me to be particularly important given how often a focus on South-North relations is seen as somehow inconsistent with or at least in tension with broader notions of fairness that extend beyond the inter-state context.  In fact, one of the great advantages of taking Southern concerns about fairness seriously is that the underlying logic leads—slowly, perhaps, but inevitably—to a serious engagement with social justice at all levels.

Now for the one area where I feel that Prost and Torres Camprubi in fact understate the problem.  Their discussion of the principle of common but differentiated responsibilities (CBDRs) is undertaken in the context of an argument that, along with sustainable development, CBDRs are often (inappropriately) seen as an indication that Southern concerns, and concerns about fairness more generally, have been addressed.  While I find this argument compelling, I felt that Prost and Torres Camprubi do not fully engage with the importance of CBDRs from the perspective of the South.  They point out that CBDRs have recently come under attack, mentioning the climate change negotiations as the notable example.  They go on to suggest that “this progressive retreat from differential treatment suggests that CBDRs are perhaps best understood as an incentive temporarily assented to by the North to induce greater participation in environmental regimes” rather than “a definitive or systematic response to problems of environmental justice.”  What this fails to capture is the very real sense of alarm that has greeted the opposition to CBDRs, and the fact that for many in the South, an attack on CBDRs is an attack on the notion of equity itself.  Even characterizing CBDRS as “an incentive temporarily assented to by the North” is somewhat problematic, given that the principle represents perhaps the single most significant normative contribution of the South to the discipline of international environmental law.

In reading over what I’ve written, I realize that I sound angry, and perhaps the ultimate tribute to Prost and Torres Camprubi’s analysis is that it inspires not only reflection but also a sense of outrage at the failure to take concerns about fairness seriously.  At the beginning of their article, they note that few have suggested that international environmental law’s “normative blueprint itself is unfair and needs rethinking or reforming.”  What they have done here goes beyond a mere suggestion. I read them as proclaiming that unfairness is deeply embedded in the normative framework of the discipline, and must be addressed as a matter of urgency.  So, giving in to my initial temptation, let me finally say: I agree!