Addressing the Causes not Symptoms: International Law and the Environment

The Sixth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC), the United Nations body for assessing the science related to climate change, has recently reminded us that the environmental issues we face today pose an existential threat. Until now, we have responded to these problems through international legal action. Proposing a change in priorities, this article will argue, using climate change and the exploitation of nature as case studies, that the roots of the problem lie in the economic and/or political spheres, and thus an isolated response addressing the ‘environment’ is inadequate. It will then examine other structural reasons that need to be addressed if we are to find successful solutions. Finally, it will question if a legal response is sufficient in light of these observations.

Understanding the causes

It must first be asked what the problems identified by International Environmental Law (IEL) are, and what causes them. Two case studies will be discussed. The first is climate change, caused by the emission of greenhouse gases (GHG), the major contributor to which was industrialisation in the West. This is exacerbated by the high consumption of fossil fuels in the Global North today. Thus, since GHG emissions are historically a by-product of wealth creation, the excessive use of industrialised countries has led to the circumstances we face today. Evidently then, the root cause of climate change is likely to be economic, in that industrialisation-led growth and overconsumption have led to this predicament. Today, the neoliberal model of economic development, facilitated by international financial institutions, furthers this agenda. Until the priorities of the global economic order are rethought, environmental solutions would only address the symptom, not the cause. Thus, structural change is needed in stopping or slowing down national economies and economic globalisation – a conversation that does not neatly fit within the IEL paradigm.

Another issue is the exploitation of nature – deforestation, species extinction, etc. The historical roots of this lie in colonialism. Grove has highlighted the ‘grievous ecological impact’ of westernisation and empire, which is now irreversible. Colonialism was premised on the exploitation of resources in the Global South. Some argue that this was accompanied by environmentalism since colonial rulers signed treaties on the preservation of flora and fauna. However, Mickelson has pointed out that this was applied only to the colonies, although the treaties were a response to the threat posed by European expansion, and the 1933 Convention on the Preservation of Flora and Fauna in Their Natural State was primarily aimed at controlling the activities of ‘natives’ – who had not seriously contributed to the problem. Crucially, the native populations in many colonies had pre-existing links with nature, sometimes even spiritual/religious, which is not recognised in celebrating European ‘environmentalism’. Moreover, it is unclear what these treaties were motivated by. For instance, the London Convention of 1900 included a list of ‘harmful animals’ for whom it was ‘desirable to reduce the numbers.’ This legitimises their incessant hunting, and it would be interesting to juxtapose this list with a contemporary list of endangered species. Finally, in the present, this pattern is repackaged in the form of economic globalisation, where the main exploiters of Southern economies are Northern corporations. This leads to a similar conclusion – the roots of the problem lie in colonialism and neo-imperialism, both premised on political and economic exploitation. Until these factors are addressed, change would be inadequate.

Structural change

There are also overarching issues common to different environmental problems. One is global inequality. Some countries that have played no role in the state of affairs we live in today are particularly vulnerable to adverse impacts of climate change. Catastrophic events are common in the South in the present, and thus, they have been arguing that these environmental issues cannot be separated and addressed in isolation from other challenges. Thus, context – economic, social, cultural, and historic – matters. Some recognition of this can be seen in the principle of Common But Differentiated Responsibilities (CBDR), which involves a transfer of financial and technological resources from the North to South, recognising their common interest in preserving the environment along with distinct roles for achieving this. CBDR recognises inequality and seeks to correct it, by recompensing for past injustices or reflecting enhanced responsibility for past wrongs. However, it is worth asking if this is enough. Perhaps directly addressing global inequality through redistribution and restructuring the global economic order would make us better equipped to deal with these disasters. As Goldemberg stated, while ‘[g]lobal environmental degradation … is a consequence of affluence,’ local environmental degradation is linked with poverty, but the West is not interested in addressing the root causes of poverty. Until poverty and inequality are addressed directly, technology transfers addressing climate change may not lead to systemic change. Furthermore, affluence, i.e., the root cause of global inequality, also needs to be addressed directly through redistribution and a restructuring of the global economic order to tackle environmental issues.

Second, a structural issue in the political field is the challenge posed by the orthodox sovereignty model. This takes the form of states’ permanent sovereignty over their natural resources (PSNR), which means that they have an inalienable right to dispose of their resources according to their national interests. This is guaranteed by international law itself. Although it can be a part of the right to self-determination, it can also legitimise the exploitation of the environment. Thus, some environmental problems are also rooted in concepts/principles central to the international political system we live in, and reconceptualising or rejecting these would mean addressing the root cause. This is also linked to the solution of global redistribution highlighted above, a policy that the Westphalian model of sovereignty would be resistant to.

Economic and political solutions

The above discussion highlights a paradox: environmental issues are often artificially separated from economic and political ones, but their causes lie in the political and economic sphere. An instance of this fundamental mistake can be seen at the Stockholm Conference, where the inclusion of development on the agenda was seen as a political compromise, although what the Global South was demanding was a fundamental change, including adding questions of human rights, ethnicity, and distributive justice to the agenda. However, the radical conceptualisation of environmental degradation as an outcome of underdevelopment, thus requiring efforts towards development, was only seen as a strategic concession – even though it was a demand for equity, not a bargaining strategy. The alternative, thus, lies in recognising and addressing the underlying economic and political factors that are leading to environmental problems.

This means that the issues need to be reframed. Instead of approaching challenges to the implementation of solutions as a lack of ‘hard’ enforcement mechanisms, the focus should also be on economic and political solutions. The response should thus be more pervasive, environmental concerns need to reach institutions that make economic and political decisions, such as international financial institutions, and not simply be cordoned off in environmental bodies.

An example of this approach can be seen in the recent Report of the Special Rapporteur on Extreme Poverty and Human Rights, which has also called for economic transformation to address climate change, requiring a fundamental shift in how states have historically sought prosperity. This includes policies related to social and economic rights, satisfying essential needs, and a more equal distribution of resources. However, the Report sought to characterise these ‘deep structural changes’ as compatible with a neoliberal developmental model: positing that the ongoing climate crisis would reduce working hours, affect workers’ productivity, etc. This is of limited usefulness, since the contradiction between framing policies as beneficial to economic growth may run its course eventually, and in some instances it could be beneficial to reject the structural change if market-friendly justifications cannot be found. Thus, the preferred approach should be to see this structural transformation as an end in itself, even if the policies remain the same.

Finally, implicit in the discussion above is the understanding that a merely legal response to these issues would be fatal. The shortcomings of various international Conventions and principles (such as CBDR and PSNR) have been highlighted. More generally, a wholesale transformation of the global economy, polity, and society is needed. Since the root causes discussed above are inherent in the very systems we have today, signing more Conventions, even if accompanied by an International Environmental Court, would not make a significant impact on mitigation or elimination of the problems.

Concluding comments

This article has discussed how many environmental problems are a result of economic and political causes, and thus the solutions corresponding to them must also be in these spheres. In doing so, it has questioned the usefulness of treating environmental issues as distinct from, or antithetical to, concerns about inequality, development, socio-economic rights, etc. Finally, it has called for structural transformation of principles and institutions, a change that includes, but is not limited to, the legal sphere.

 

Mythili Mishra, LLB, London School of Economics and Political Science (2021), BA (Hons) Political Science, Lady Shri Ram College for Women, Delhi University (2018).

The author would like to thank Dr Margot Salomon for her valuable comments on an earlier version of this article. 

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