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LJIL Symposium Vol 25-2: Fairness in International Environmental Law – Against Fairness? A Response to Mickelson and Posner

[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.

US Lawmakers Send Letter to Obama Administration Warning on Arms Treaty Negotiations

The Hill (a DC newspaper covering US Congress and government) reports that some 130 US Congresspeople have sent a letter to the Obama administration objecting to various aspects of the just-started UN Arms Treaty negotiations in New York and warning the administration against what the lawmakers regard as infringements on US citizen gun rights or US sovereignty.  I thought I...

LJIL Symposium Vol 25-2: Fairness in International Environmental Law – Against Pragmatism?

[Eric Posner is Kirkland & Ellis Professor of Law and Aaron Director Research Scholar at the University of Chicago] 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. Mario Prost and Alejandra Torres Camprubi’s article begins promisingly, with its criticism of IEL scholars’ “tacit disciplinary mindsets” which see international environmental law against all evidence as a “heroic and transformative project.”  But while one would have expected the authors then to launch a broadside against the idealistic tendencies in the IEL literature that have rendered most of it irrelevant to real-world policymaking, they pivot and criticize the literature for ignoring “fairness”—which is news to me.  The oddness of this approach is epitomized by their choice of target: my book (with David Weisbach), Climate Change Justice.  They are right to argue that we discount fairness in our book, but I do not think anyone would regard our book as representative of conventional IEL scholarship.  If that is their view, it is far more wounding than any of their substantive criticisms. In any event, let me address these criticisms.  Prost and Camprubi argue first that we present the South “as an opportunistic negotiator” rather than as a “bona fide partner.”  I fear that we might get lost in semantics here, or the clubby rhetoric of diplomacy, but I regard all countries as “opportunistic negotiators,” out to seize the main chance, and willing to use whatever means available.  So if I say or imply that the South is “opportunistic,” I am treating southern countries as equals of the North, and resist the clichés so common among scholars, who take the rhetoric of (often authoritarian) countries at face value, and see developing countries as hapless victims or righteous spokesmen for justice.

Weekday News Wrap: July 5, 2012

Paraguay has recalled its ambassador in Venezuela in protest over allegations that the Venezuelan government tried to encourage Paraguay's military leaders to defend the recently impeached leftist President Lugo. Yasser Arafat's body may be exhumed to examine whether he died of polonium poisoning as revealed by an Al-Jazeera investigation. Palestinian officials are calling for an international inquiry. It's a tough time for former...

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.)

Weekday News Wrap: July 4, 2012

In an end to a 7 months standoff, Pakistan has reopened border crossings for US and NATO military supplies after US Secretary of State Clinton issued an apology of the November air strike that accidentally killed 24 Pakistani soldiers. Japan has protested against Russia's Prime Minister Medvedev visit on Tuesday to the disputed Kuril Islands. A Chinese newspaper is accusing the Philippines...

Weekday News Wrap: July 3, 2012

Syria's President Assad has expressed regret at the downing of the Turkish jet last month and has vowed to apologize should it be established that the jet was shot down in international airspace. Human Rights Watch has released a report on arbitrary arrests, detention and torture in Syria since the beginning of the civil unrest in March 2011. A Reuters article discusses how the...

Weekday News Wrap: July 2, 2012

The ICC turned 10 yesterday. Amnesty International's Secretary General passes judgement here. Militants in Timbuktu, Mali, are destroying Sufi shrines, which they consider idolatrous. UN Secretary General Ban Ki-Moon has expressed his concern and ICC Prosecutor Fatou Bensouda has warned that the actions can be considered a war crime. Tensions continue to build along the Syria-Turkey border. The UN-backed Group on Syria reached...

Weekend Roundup: June 23 – 29, 2012

This week on Opinio Juris, Kevin Jon Heller continued coverage of the Melinda Taylor situation in Libya, pointing out a special report in the Guardian detailing her detention and that so far, the "non-apology apology" issued by the ICC has not helped the situation. In other ICC-related news, he pointed out John Bellinger's editorial on the Court at 10 years old. Kevin additionally...

There Is Still Time to Complete Our Readers’ Survey

Dear all, If you haven't had a chance yet to complete our Readers' Survey, there is still time to do so! We  want to know what our readers think about how we're doing and where we can improve. You can access the survey through this link or through the button on the right side bar of the blog. The survey shouldn't take...

Best Anti-War Songs Ever?

One of my favorite playlists on my iPod is a collection of anti-war songs from the Vietnam era.  Even though I was alive for only some of it, the mid-60s/early 70s produced my favorite music -- much to the delight of my father, who was a hippie at the time and doesn't understand why I relate so deeply to the...