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“International
environmental law […]
has failed to respond to Third World concerns in a meaningful fashion”.
Karin
Mickelson
This is an essay I recently did. Chose this question so that I could understand the issue from an African context. I got good marks for it so I suppose my arguments are somewhat substantive ;) Decided to post it here for anyone wishing to understand International Environmental Law from an African context and the Third World context in general because it is not until we understand it, that we, as the new generation can work towards advocating for a change in International Environmental Law to girdle our African concerns so that we aren't always on the receiving end :) It was 2,500 words so couldn't write much or cover everything in detail. I therefore, left out some issues and some arguments were summarised. But I have left it as it is, including footnotes and bibliography just so those wishing to look further into the issue can have a starting point(for those who've never looked at it that is). Do feel free to correct me if you feel any of the arguments I raised are mis-informed or lacking in truth.
Question: Critically
discuss the following statement by Mickelson (‘South, North, International
Environmental Law, and International Environmental Lawyers’ (2000) 11 Yearbook
of International Environmental Law 52 at 54): “International environmental law
[…]
has failed to respond to Third World concerns in a meaningful fashion”.
The hypothesis that “International
environmental law […] has failed to respond to third world concerns
in a meaningful fashion” is derived from Karin Mickelson’s argument on “South,
North, International Environmental law, and the International Environmental
Lawyers” where she seeks to assert that in order for the third world, also
known as the South, to be able to deal with environmental issues effectively,
it is important and completely necessary to consider other factors that hinder
the development of the efforts set forth by International Environmental Law to
tackle environmental issues in the South. This is because the South is
experiencing other catastrophes such as “famine, pestilence, war and death” and
it should therefore “be obvious that those who are already living in
catastrophic situations can hardly be expected to respond eagerly to appeals to
starve off environmental catastrophe”. [1]
Mickelson goes further to say that although the need for environmental issues
to be dealt with is a matter of urgency, this cannot be done without taking
into equal consideration the number of challenges faced by the South. Her
argument thereby, is that. “Environmental problems have to be addressed, but not
in isolation from a host of other factors. They need to be understood in a
broader economic, social, cultural and historic context”.[2]
In this essay, I will look at how
Mickelson arrives to such conclusions with reference to further elaborations
she makes on and in support of the hypothesis that “International Environmental
Law […]
has failed to respond to Third World concerns in a meaningful fashion”. In
agreement with Mickelson, I will show how the legal mechanisms set forth by international
environmental Law have failed to address third world concerns by highlighting
and discussing arguments brought forth by different scholars in the field and
from my personal point of view based on my best understanding of the subject. This
however is not to say that international environmental law has completely
ignored the interests of the third world, therefore, without disregarding and
bearing in mind the attempts made by international law to address concerns of
the third world, this essay will show how these legal mechanism, although put
forth with good intention, have failed to, as stated by Mickelson, “respond to
third world concerns in a meaningful fashion.
One of the biggest problems of
international environmental law is what Mickelson refers to as the “accommodationist
approach”. The accommodationist approach has two main strands. The first is the
failure to take into account historical nature of international environmental
law.
“… There is a tendency to provide
ahistorical account on the evolution of international environmental law.”[3]
The forming of international
environmental regimes has been ongoing since the early 1800 through various
instruments such as treaties and conventions with a number of agreements coming
into force. These agreements have come about to deal with some of the main
environmental issues such as hazardous wastes, nuclear waste, the protection of
the ecosystem, the ozone depletion and the need to protect the atmosphere from
things such as pollution, the protection of species and sustainable development
among others. The Stockholm Declaration of 1972 is perhaps the most monumental
of these agreements as it laid down principles that were intended to be
governing principles of all future agreements and development of international
environmental law as well as used as a basis for state cooperation. In
attempting to deal with the increasing challenges and environmental threats
faced today, it is necessary that the agreements of the past be taken into
consideration and given just as much importance because, by failing to take
into account the nature of international environmental law and its evolution to
the present day, it is almost impossible to understand the issues international
environmental law aimed to tackle when it developed and to what extent these
have been resolve or unresolved for that matter. This is an area where
international environmental law and environmental lawyers have failed. As
Mickelson states,
“Little or no
effort is made to portray the conditions to which these agreements were meant
to respond or the broader political and economic backdrop against which they
emerged.”[4]
One might question what the
significance of providing historical accounts on the evolution of
International environmental law is. The history plays a significant role in
that, the destroying of the natural environment is not something that happened
overnight, but rather something that has built up over the decades and at a
very fast rate. Environmental degradation has mainly been caused by developed nations
in their quest for industrialization and this has impacted heavily on
developing nations. During colonial times, international agreements set forth
served the best interest of the North and not that of the South. Take the Convention
on the Preservation of Wild Animals, Birds and Fish in Africa[5]
and the Convention on the Preservation of Flora and Fauna in Their Natural
State[6]
for example.
“As
agreements that were entered into by a group of colonial powers with respect to
Africa, they had the obvious flaw of failing to apply to their metropolitan
territories. … the particular vision of conservation embodied
in the treaties was both problematic and illuminating,”[7]
It is thereby arguable that the
reason historical accounts of the evolution of international environmental law
are normally not given the attention they should be given is as a result of
such flaws as mentioned above. Developed nations exploited and advanced at the
expense of the third world and it is correct to argue that this is one of the reasons,
among others, that developing nations remain in poverty. Looking back at these
historical accounts would thereby place responsibility on developed nations for
environmental damage, of which the third world are now suffering consequences
of. Failure to do so thereby highlights a flaw in international environmental
law and a sort of bias agenda, agreeing with the notion that “International
environmental law […] has failed to respond to third world concerns
in a meaningful fashion”.
The second strand of the
accommodationist approach is with reference to how the South is viewed and the
status given to them in international environmental law.
“… the South is, implicitly or
explicitly, portrayed as a grudging participant in environmental regimes rather
than recognized as an active partner in an ongoing discussion regarding what
the fundamental nature of environmental problems is and what the appropriate
responses should be.”[8]
As a result of this perception of
the South when it comes to international environmental law, the North, in order
to get the approval of the South, persuade them by giving considerations to
their problems. A good example is the Stockholm declaration[9]
and the arguments shown in the Founex Report where it seemed that the relation
between the developmental aspect and the environmental problems faced by the
South had been well understood.[10]
It is arguable that the Founex Report along with the Cocoyoc Declaration[11]
attempted to widen the perspective in which environmental problems are viewed.
However, it can be reasoned that the taking into consideration of other issues
faced by the Third World and the attempt at widening the North’s perspective
was just an argument set forth to simply get the approval of the South. The
taking into consideration the developmental aspects of the South encompassed in
the agreement was out of the selfish interest as these considerations ended up
on paper but in reality were not applied to the benefit of the Third World.
There was also one main underlying
issue. The concept of “environmentalism” and as argued by Mickelson,
“… something more fundamental was
involved: an unwillingness to acknowledge that “environmentalism” itself was
open to varying interpretations”.[12]
The problem with this is that
environmentalism is defined in one way and as a result the South are seen as
though to almost always stand against the efforts to combat environmental
degradation and their efforts in combatting environmental degradation go
unrecognized or are simply relegated to the history books due to their status
as the third world. An example being the Basel Convention on the Control of
Trans boundary Movements of Hazardous Wastes and Their disposal, also known as
the Basel convention which was pushed for by developing nations who were taking
a stand against the dumping of hazardous waste by the North, into the South.[13]
The principle of “common but
differentiated responsibility” of the Rio Declaration,[14]
has posed to be more of a problem to the third world than an aid mechanism.
This is because it allows for various interpretations, depending on how it is
viewed. For some it is seen as bearing with it the responsibility of the North
to the South as they are more developed and for others, it is viewed as placing
responsibility for environmental degradation on the North, hence the need for
the responsibility states bear, to be differentiated. Contrasting the views of
the US and that of the G-77 can help us understanding the conflicting interpretations
allowed by principle 7. While the US looked at this principle as to
highlighting “the special leadership role of developed countries”,[15]
the G-77 looked at the principle in the sense that “all states share a common
but differentiated responsibility for containing, reducing, and eliminating global
environmental damage and for restoring the ecological balance of the earth, in
accordance with their respective responsibilities and capabilities”. Going
further to state, “all countries, particularly developed ones, shall make
commitments to address their unsustainable patterns of production and
consumption.”[16]
Ergo the varying interpretation this
allows, principle 7 allows developed states, such as the United States, some
sort of superiority status over the third world. This therefore ignores the
main contributions made by the developed nations to environmental degradation,
placing them on a higher footing than the developed nations, which is thereby
in the interest of the developed nations and not the Third World. This shows
the principle of common but differentiated responsibility creating a further
divide between the North and the South, as opposed to achieving equality.
In the Trail Smelter case, the
notion of State Responsibility was developed.[17]
However, this has proven to be of little effect, if any, when it comes to
multi-national corporations. This is particularly disadvantageous to the third
world as most of these multi-national corporations are usually very powerful
and therefore impossible for the state jurisdiction in the countries in which these
corporation carry out their activities to apply effectively. A particular
example would be in the controversial case of Cheron v Equador.[18]
With regards to climate change,
international environmental law has attempted to deal with the Southern question
by allowing for emissions trading scheme, established under the Kyoto Protocol[19]
which not only allows for developed nations to meet their carbon emissions
standards through the trading of emissions credits, but also for the Third
world to be on the receiving end by getting technological assistance in a
somewhat “gain/gain” trading scheme. This however, cannot be said to serve any
good to the third world because the developing nations, lack the
professionalism to be able to run these technologies effectively and therefore
the emissions trading scheme is only beneficial to the North and not the South.[20]
This also simplifies the problems of the developing world, because although an
optimistic idea, it does not look at the root of the problems of the third world.
The emissions trading scheme allows
for exploitation in that the developed nations export technology to the Third
World at very high rates while the Third World produces cheap raw materials and
there is also no fair trade. As studies by Prebisch and Singer have shown, “the
terms of trade seemed to be bias against [underdeveloped] primary producers and
…
these terms had been deteriorating for … nearly a hundred years”.[21]
The notion of equity is a very
debatable area as there is no clear definition as to what would amount to
fairness. Equality of states on the other hand holds that all states are equal,
therefore, this in itself allows for an injustice in that what would be fair to
one state, would be unfair to the other. There is an argument that the developed
nations owe a debt to the developing nations and the question therefore would
be, should developing nations be allowed to pursue their developmental goals?
It is hard to achieve sustainable development as developing nations in their
nature, are developing, thereby pursuing sustainable development would be
difficult as they have far more urgent matters to deal with, not to mention the
lack of professionalism.
The lack of adequate professionalism
and representation was also seen during the Buenos Aires Conference on Climate
Change of 2004.
“While the
United States boasted a contingent of eighty-three people and the European
Union forty-five, … a typical African state sent only two to four
people.”[22]
Article 8 of the Montreal protocol
deals with non-compliance.[23]
In many instances the Third world lacks the mechanism to effectively apply the
principles set forth by international environmental law. This is normally as a
result of lack of effective institutions in these nations. In order to deal
with non-compliance, the international environmental law would need to deal
with the root which would lead back to what Mickelson suggested, the addressing
of environmental matters, but not in isolation of all the other factors that
affect the Third World.
In conclusion, it can be said that
international environmental has indeed employed a number of mechanisms and
efforts to combat environmental degradation with regards to attempting to
consider and deal with the concerns of the third world. These have been largely
ineffective as the underlying and fundamental problems faced by the third world
have been particularly ignored, and as a consequence, the legal mechanisms to
address environmental issues have been greatly unsuccessful with respect to the
Third World. It is clear to see that environmental issues are at the heart of
concern, however, the instruments advanced, such as MEA’s, soft law instruments,
Treaties and conventions are ineffective. This is largely because of the
approach in which they are exercised. Most of the agreements and conventions
are developed from a western perspective, thereby ignoring the Third World
dimension and, as correctly argued by Mickelson, failing to “respond to Third
World concerns in a meaningful fashion”. If international environmental law is
to be successful in responding to Third World concerns, a different approach
needs to be taken, one that will integrate the underlying problems of the
developing world, the preeminent one being poverty.
[1] Mickelson, K. (2000). South, North,
International Environmental Law, and International Environmental Lawyers.
Yearbook of International Environmental Law. 11 , at 53.
[2] Ibid., at 54.
[3] Ibid.
[4] Ibid., at 55.
[7] Mickelson, K. (2000). South, North,
International Environmental Law, and International Environmental Lawyers.
Yearbook of International Environmental Law. 11 , at 58.
[8] Ibid., at 54.
[10] The Founex report on development
and environment ,1971.
[11] Cocoyoc Declaration, 1974.
[12] Mickelson, K. (2000). South, North,
International Environmental Law, and International Environmental Lawyers.
Yearbook of International Environmental Law. 11 , at 65.
[15] As quoted in, Mickelson, K. (2000).
South, North, International Environmental Law, and International Environmental
Lawyers. Yearbook of International Environmental Law. 11 , at 71.
[16] Ibid., at 70.
[18] Chevron Corp. v. Ecuador, UNCITRAL
Arbitration, Partial Award on the Merits,125 (Mar. 30, 2010), Available at: http://ita.law.uvic.ca/documents/ChevronTexacoEcuadorPartialAward.PDF.
[19] Kyoto Protocol, 1997.
[20] Richman, E. (2003). Emissions
Trading And The Development Critique: Exposing The Threat To Developing
Countries. at 155.
[21] As
quoted in, Mehmet, O. (1999). Westernizing The Third World: The Eurocentricity
Of Economic Development Theories. at 80.
[22] Richman,
E. (2003). Emissions Trading And The Development Critique: Exposing The Threat
To Developing Countries. at 157.
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Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (1989). 1673 UNTS 126; 28 ILM 657
Available at:
Chevron Corp. v. Ecuador, UNCITRAL Arbitration, Partial Award on the Merits,125 (Mar. 30, 2010).
Available at:
Convention for the Preservation of Wild Animals, Birds, and Fish in Africa (1900). London. Vol. 101 of Cd. (Great Britain. Parliament).
Convention on International Trade in Endangered Species of Wild Fauna and Flora (1973). 27 UST 1087; TIAS 8249; 993 UNTS 243
Available at:
Declaration of the United Nations Conference on the Human Environment. U.N. Doc. A/Conf.48/14/Rev. 1(1973); 11 ILM 1416 (1972)
Available at:
Gonzalez, C.G (2004). Trade Liberalization, Food Security, and the Environment: The Neoliberal Threat to Sustainable Rural Development. Vol. 14. Transnational Law &Contemporary Problems.
International Organization (1975). Vol. 29, No. 3. International Responses to Technology.
J.M. Cypher and J.L. Dietz (1997). The Process of Economic Development. London and New York: Routledge.
Kyoto Protocol to the United Nations Framework Convention on Climate Change. UN Doc FCCC/CP/1997/7/Add.1, Dec. 10, 1997; 37 ILM 22 (1998)
Available at:
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Mickelson, K. (2000). South, North, International Environmental Law, and International Environmental Lawyers. Yearbook of International Environmental Law. 11.
Montreal Protocol on Substances that Deplete the Ozone Layer (1987). 26 I.L.M. 1541.
Available at:
Rajamani, L (2006). Differential Treatment in International Law, Oxford: Oxford University Press.
Report Of The United Nations Conference On Environment And Development (1992). A/CONF.151/26 (Vol. IV)
Available at:
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Available at:
Rio Declaration on Environment and Development (1992), Report of the U.N. Conference on Environment and Development, U.N. Doc. A/CONF.151/26 (vol. I)
Reports on International Arbitral Awards. Trail Smelter Case (United States, Canada) 16 April 1938 and 11 March 1941. Vol.3
Available at:
Sands, P. (2003). Principles of International Environmental Law. 3rd ed. Cambridge: Cambridge University Press.
The Founex Report On Development And Environment (1971).
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