[Mario Prost is a Senior Lecturer at Keele Law School (UK) & Alejandra Torres Camprubí is a Research Fellow at the Faculty of Law of the Universidad Autónoma de Madrid]
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.
We would like to thank the symposium organizers and contributors for providing an opportunity to discuss some of the arguments we make in our recent article ‘
Against Fairness? International Environmental Law, Disciplinary Bias, and Pareto Justice’. In this article, we take issue with International Environmental Law (IEL)’s traditional neglect for considerations of distributive justice and its bias against the South – a bias first noted by Mickelson more than a decade ago in a
groundbreaking article. We also consider the more recent and more direct attack from law and economics scholars against the notion that considerations of justice should play a role in the design of environmental regimes – an attack developed in its most systematic and methodical form by Posner and Weisbach in their
Climate Change Justice. We are very pleased that Mickelson and Posner agreed to comment on our article and to be given a chance to respond to them.
Let us start with a point of clarification. In his response, Posner takes offence at the fact that his work is characterized as representative of conventional IEL scholarship, something he finds ‘far more wounding’ than any of our substantive criticisms. Whilst we sympathise with Posner (no one likes to be called conventional), the characterization is not ours and the point we make in our article is not that Posner and Weisbach are in the mainstream. We simply observe that, in addition to IEL’s quiet disregard for the South, a far more blunt and direct attack has been launched by law and economics scholars against the Third World’s claims of environmental justice. To be clear, we feel that
Climate Change Justice does share much in the mainstream’s prejudice against the South, if only in its stereotypical depiction of ‘the poor’ making ‘unrealistic demands’ on industrialized countries and asking them to pay ‘simply because they are rich’. At the same time, we appreciate that, normatively, Posner is as far as it gets from the mainstream and its narrative of heroism.
In fact, Posner’s attitude is perhaps best understood as the mainstream’s perfect opposite. The IEL mainstream, as we try to demonstrate in our article, pretends to care about justice whilst continuing to use concepts, representations and a vocabulary which are intrinsically biased against the South. There is a form of hypocrisy at play – a Tartuffery almost –which, like Mickelson, we find ‘outrageous’ and ‘angering’. In contrast, Posner does talk about fairness, and at length,
whilst pretending not to. What Posner calls ‘pragmatism’ and ‘realism’ may not look like fairness talk, yet fundamentally it is just that. The important point of course is that the fairness Posner advocates is fairness
American style, a fairness which demands conveniently forgetting past wrongs because they are too complex to remedy, looking at carbon flows rather than carbon stocks, and rejecting per capita emissions as a principle of distribution because of their ‘politically unacceptable’ cost for large emitting nations. Posner’s work is thus not hypocritical in the way that conventional IEL can be. It is, however, political (we do not regard this as a bad thing) and in our view serves the same Western interests that the IEL discipline generally serves, only more blatantly.
