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New Constitutionalism and the Environment: A Quest for Global Law Hilal Elver Introduction In this chapter I interrogate the relationship between the legal and institutional frameworks of economic globalization associated with the concept of “new constitutionalism” (e.g. the liberalization of trade and capital movements) and it’s impact on ecological principles. There is a constant tension between new constitutionalism of disciplinary neoliberalism and the ethical, normative principles of environmental law. My analysis implies the necessity for a new global environmental law to protect our common future, to overcome major environmental and human crises. This new legal order must be based on cosmopolitan ethical principles, respect for human rights, justice and equity; it should supervene over the national interests and sovereignty concerns of individual states in order to protect the global commons; and finally it should follow transparent, democratic, participatory institutional frameworks. In this proposed order, previously excluded groups that are victims of adverse effects of climate change and other environmental degradation, must be included in decision making mechanisms. Global environmental law should provide an ethical foundation and permit action on behalf of the whole humanity rather than powerful, hegemonic states, international organizations and the interests of multinational corporations. This critical perspective is an alternative to currently dominant set of institutions and practices of global governance associated with the new constitutionalism of disciplinary neo-­‐liberalism International environmental law of 1970s has brought innovative principles, such as the precautionary principle, common but differentiated responsibility, intergenerational justice, limited sovereignty, and sustainable development, and in so doing, extended the horizons of traditional international law. However, in the process of internalizing and constitutionalizing these principles, states are experiencing competing regulatory options involving not only protection of the environment but also free enterprise principles to protect the free movement of international capital and investment, to remove protectionism, to limit social and environmental services that previously under the State or local governments’ responsibility and provide easy access for foreign capital to access natural resources. The aim of the latter is to limit governmental power, to shift self-­‐
regulation of business and finance and promote pro-­‐market reforms. Gill and Cutler defines such legal and political framework and their institutions as ‘market civilization.’ These contradictory sets of rules, especially have a profound impact on transitional economies and developing countries that do not have the freedom to choose whether to implement neoliberal rules because of their economic dependency on the global financial institutions. Neo-­‐liberal policies that include free trade and less government have altered the environmental management of natural resources such as fresh water, forests, agricultural land, and fisheries in developing countries. Case studies show that privatization and pricing of environmental services, environmental impacts of free trade and overall implementation and impacts of neoliberal policies has had a profound but also various degree of influences on the environmental management of developing countries.1 1
For Latin America See; Diana M. Liverman and Silvina Vilas, “Neoliberalism and the Environment in Evolution of Environmental Law and Constitutionalism Environmental pollution increasingly is viewed as transcending national borders and global problems, including biological diversity and climate change, are considered to pose significant risks to the health of the planet. Worldwide population growth, excessive consumerism and expansion of global trade, have all contributed to alarming environmental problems. Internationalization of the concern over the environment emerged in the early 1970s in the aftermath of the UN Conference on the Human Environment held in Stockholm, June 1972. The development of international environmental law principles in the post Stockholm Conference is considered a turning point among environmental law scholars. Soon after the first UN institution on environment, the UNEP was established. Afterward, several countries founded national environmental institutions and environmental principles were placed in various forms in new constitutions of many developing countries. This was the initial stage of environmental constitutionalism, “in which certain needs and interests of present and future generations, the global community, and other forms of life are given foundational legal importance” (Kysar, 2012). Approximately 130 countries now have constitutions that include environmental protection, 70 of which provide individuals with some degree of what might be called “fundamental” rights to a “clean,” “healthful,” or “favorable” environment. The intersection of constitutional and environmental law have also influenced other areas of law such as, real estate, land use, administrative, torts, civil procedure, workplace safety, tax, and international law. Besides constitutionalization of environmental protection in domestic level, states continued to negotiate and sign major global environmental treaties. Besides the UNEP’s activities, some important scientific discoveries and accidents also helped to keep up the initiatives. Among those, depletion of the ozone layer, and disasters like the nuclear accident at Three Mile Island in 1979, the Union Carbide chemical leak in Bhopal in 1984, and the Chernobyl nuclear meltdown in 1986, added a sense of urgency. In 1987, focusing on economical and ecological connections and the compromise of developed and developing countries’ interests, the concept of sustainable development became a new motto of new global environmental policy. However, the earlier glorious period of environmental principles gradually faded away because of rising power of free market – or more precisely free enterprise – principles in the1980s and especially in the post Cold War era. The Rio Summit of 1992, the largest UN conference in history, put environment and development on the global agenda. However, corporate lobby captured the agenda at Rio and in the decades following, global environmental issues slipped down the list of state priorities, as they turned to the threat of terrorism and security after 9/11, and most recently the global financial crises in 2008. Globalization, Environment and Inequality Economic globalization has been associated with free enterprise, trade liberalization, deregulation of corporate activity, and privatization of many (common) resources and public services. The Bretton Wood institutions (WTO, IMF and World Bank) assist these policies by creating rules that require nations to eliminate “impediments” that might restrict corporate access to markets, labor, and resources. Most of these so called ‘impediments’ are laws that are legally created by governments to protect environment, labor rights, and public health. All of these laws, many created by governments through democratic processes are viewed by the advocates of free enterprise as “nontariff barriers to trade” subject to WTO challenges (Mandler 2003). Calling this system “free trade” is misleading: what is “free” is only freedom for global corporations and it entails the suppression of freedom for communities or nations to regulate or otherwise maintain their primary values, like the environment, health, or labor standards. The WTO has an enormous track record for challenging environmental standards against countries that have strict national environmental laws, such as the United States, Japan and the European Union.2 The WTO is a forum that gives opportunities to corporations to take legal action against other countries by means of their parent countries instigating disputes. As a result, corporations (and their parent governments) they can attack foreign countries’ environmental or public health standards. It is a kind of “cross deregulation”: corporations press their own governments to destroy laws in other countries, just as they push for deregulation domestically. Under the pressure of the WTO not only many developing countries have had to change their environmental laws but also even those of developed countries like the United States and Canada have been influenced by regional trade rules such as NAFTA One of the main objectives of economic globalization is pushing countries to export oriented production. This means cheaper goods can come to the marketplace from anywhere, without any consideration of environmental or social costs. Creating a mono-­‐
cultural export system encourages countries not to be self-­‐reliant, but instead pushes them to open their borders to private investments. Any country that is not willing to do it, is labeled “isolationist” or “protectionist”. Developing countries especially have very little maneuvering space in resisting such pressure because of their dependence on financial aid from the World Bank or IMF for much needed for costly national development projects. The advocates of economic globalization argue that as countries globalize, often by exploiting resources such as forests, minerals, oil, coal, fish, wildlife, and water, their increased wealth will enable them to use technical devices to mitigate the negative environmental impacts of increased production. There is ample evidence, however, that when countries increase their apparent receipts in a global economy, most of the benefits go to global corporations who have little incentive to put their profits back into environmental protection or local development. Indeed, critics of globalization note that it encourages excessive economic growth and production with no real concern for unequal or unsustainable patterns of consumption, since, it is argued, globalization exacerbates ecological inequality within and between countries and marginalizes women, indigenous peoples, and the poor. 1.2 billion people live on less than US $1 per day and 2.8 billion people live on less than US $2 per day, over a billion people do not have access to clean water, and nearly 800 million people in the South suffer from chronic malnutrition: the global economy is not working for all. Moreover the gap between the rich and poor is getting wider and deeper (OECD, 2008). According to the UN, a group of 48 world’s poorest countries have a per capita GDP of under US $900, and they have very low levels of capital, human and technological development. They include just over 10% of the world’s population, but their share of the world GDP is less than 1%. (UNCTAD, 2010). The GDP of the 41 Heavily Indebted Poor Countries (567 million people) is less than the wealth of the world’s 7 richest people combined. These statistics show that the argument that the global economy is “good for the poor” is totally unwarranted. Environmental vulnerability of the LDC countries, especially in relation to Climate Change has been officially recognized in the UNFCCC. They are supposed 2
The most well-­‐known cases the WTO fought against are the US Clean Air Act, Marine Mammal Protection Act, and the Endangered Species Act. to be the beneficiaries of the special climate fund for adaptation as they have no role in producing the GHG emissions, but because of their geographical conditions, they are already subject to most burdensome effects of climate change (UN LDC, 2003). Moreover, while new environmental standards became globally applicable, poor countries gradually became home to the major pollution activities. The export of hazardous wastes and the relocation of the most polluted industries such as chemical factories to the developing world is one of the major indications of this new environmental colonialism. The Bhopal incident is a monumental example of such wrongdoing; after twenty-­‐five years, second-­‐generation children are still suffering from the effects of the Union Carbide gas disaster of 1984. The worst industrial disaster in history, and subsequent contamination of groundwater by Union Carbide (an American Company now owned by Dow Chemical, the second largest chemical company in the world) shocked the world and changed the town of Bhopal forever. Yet, the victims still continue to fight for justice with the ongoing medical and social disaster, as well as their memories of the traumatizing experience. The environmental impacts of corporate mining activities have extensive effects that go beyond damage to the natural environment and extend to the severe impact on social and cultural well being of mining communities. This ignorance was prevalent during the colonial period, but even today, despite the inclusion of environmental and social commitment in recent mining policy, corporate environmental abuses still exist, and no individual or corporate entity has been found legally culpable for environmental atrocities (Schwartz, P., 2009: 430). Nigeria and Sierra Leone provide examples of devastating impact of multinational corporations in mining, oil and mineral exploitation in poor countries. Even though in recent years, what was happening in Sierra Leone gained prominence on the international arena as a result of long civil war, it is remarkable how multinational corporations maintained very few links with the domestic economy. Mobile investors and financiers benefitted from weak local jurisdiction and escaped environmental responsibility, accountability, and appropriate enforcement mechanisms (Ebbesson, 2009: 270-­‐293). Whilst environmental regulations have been constitutionalized and internalized by developed states, activities dangerous to human health and the environment banned in developed countries find ways of going into developing countries. Environmental regulations migrate slowly to developing countries. For instance, it took three decades to ban import of asbestos in developing countries by the WTO.3 The doctrine of free trade, based on the premise that products should be able to circulate freely without hindrance from technical obstacles erected by states, is therefore diametrically opposed to domestic regulations in the area of public health or environmental protection. The philosophy of the WTO directly conflicts with environmental and health protection. Ideally, free trade rules, human health and the environment should be equally important and protected. However, until now, efforts to reconcile these two goals have been rather unsuccessful even in the developed world (De Sadeeler, 2009: 450). Environmentalism v. Corporativism Voluntary Codes of Conduct Environmental and human rights impacts of corporate led globalization in the form of large dams, mining, industrial agriculture and most recently market oriented climate mitigation policies such as clean development mechanisms (CDM) and reducing emissions 3
See: Appellate Body Report, European Communities 2001 from deforestation and degradation (REDD) are visible impacts of new constitutionalism. Against the emerging power and influence of corporate role on environmental distraction, environmentalists, human rights activists and anti-­‐globalization forces have initiated a large-­‐
scale resistance movement against multinational corporations to combat operations harmful to people and environment.4 The1999 Battle of Seattle and establishment of World Social Forum are indicators of the global civil society mobilization and signify an important turning point. The voice of civil society has become a voice of globalization from below against market forces and globalization from above. In response to the pressure of regulatory demands initiated by the environmental NGOs, the corporate lobby proposed “voluntary codes of conduct” and “corporate social responsibility” to divert attention from such demands (Assadourian, 2006). These policies aimed to divert attention from the need for “hard law” to enforce environmental laws backed by the state apparatuses, and to promote “soft law” associated with voluntary self-­‐
regulation of business practices. These principles are “soft” in that they are not legally binding and voluntary in the sense that they are not required by law, nor enforceable. Agenda 21, the official outcome of the 1992 Rio Summit, Chapter 30 encouraged such soft rules of environmental practices. More positive proposals came by socially responsible investors that have pressured corporations by threatening to divest their holdings in companies that do not develop policies to improve their environmental practices. Market based regulations Driven by successful corporate lobbyists, environmentalists and governments have begun to explore market-­‐based, performance-­‐related initiatives to regulate environmental protection and replace the traditional “command and control” system. Market based instruments encourage behavior through market signals, rather than through explicit directives. These policy instruments, such as tradable permits, cap and trade, or pollution charges, according to Robert Stavins, ‘can be described as ‘harnessing market forces’, because if they are well designed and properly implemented, they encourage firms or individuals to undertake pollution control efforts…’ (Stavins, 2003). In recent years, this view, “free market environmentalism” following the American experience, gained an international platform among the OECD countries. Widespread promotion by the Bretton Woods institutions, traditional environmental principles like “polluter pays” and other command and control mechanisms were considered ineffective. According to them, command and control regulations gradually met the limits of their effectiveness. Currently, market based regulatory system are preferred options in many countries outside of the United States and Europe. In global level, the Kyoto Protocol, the regulatory legal document of the UNFCCC, introduced three market based mechanisms for GHG emissions reductions. Two mechanisms generate project-­‐based offsets: the Clean Development Mechanism (CDM) aims to mobilize emission-­‐reduction projects in countries without legally binding emission commitments, whereas Joint Implementation (JI) is limited to projects in countries with such commitments. International Emission Trading (IET) allows countries with emissions commitments to trade parts of their emissions budgets. There are ample amount of discussions among environmentalists and economists about the success or failure of the system. (Michaelowa, 2012) Whether the main target, reduction of the GHG emissions will be reached in a reasonable time that is still possible to reverse or stop the adverse impact of 4
See Doe v. Unocal Corp., 395 F. 3d 932 (9th Cir.2-­‐2): Class action filed against a U.S. Oil Company for complicity in the forced labor, murder, rape, and torture of natives of Burma by the country’s military in the course of constructing oil pipeline; Doe v. Exxon Mobil Corp., 393 F. Supp. 2d 20 (D.D.C 2005): Lawsuit by Indonesian villagers against U.S. oil company charging human rights abuses by Indonesian military guarding oil facilities. climate change is yet to be seen. Public-­‐ Private Partnerships At the beginning of the twenty-­‐first century, the United Nations introduced the Millennium Development Goals to work toward eliminating poverty and providing access to vital resources and services to poor communities. One of the ways to deal with these goals was by introducing the privatization of public services. To prevent so-­‐called “dysfunctional state operation” and after some failed projects of the 80s and 90s, the IMF and the World Bank proposed public-­‐private initiatives or partnerships to promote privatization. Considering the political resentment against the word “privatization”, eventually this term was dropped and “partnerships” replaced it, allowing multinational companies to access development projects such as large dams. Large dam projects had been largely abandoned in the developed world due to the adverse impact on environment and social destruction of local communities. Public-­‐private partnership initiatives gave a birth to new “hybrid institutions.” Partnerships among corporations, international institutions, and established NGOs created a new policy making bodies for resource management. For instance, the partnership between the CEO Water Mandate and the UN; the Alliance for Water Stewardship with the Nature Conservancy; the Water Stewardship Initiative, World Water Council and the cooperation with several UN agencies and many others are examples of new hybrid institutions. While they provide global policies for vital resources, they actually participate in rule making process, as an equal partner to states and international institutions. The aim of such intrusion is to control and dominate the regulatory framework in favor of international business (Elver, 2012). The major aim behind this is not only taking over lucrative services that traditionally were part of the state responsibility, but also clearing away regulatory hurdles for corporate operations. Sadly, many environmental NGOs have started to work with such institutions in order to be part of the new governing process.5 A New Global Challenge: Climate Change Despite significant environmental injustices in relation to environmental pollution, disastrous accidents, and resource exploitations at national, international and global levels, earlier environmental challenges, including transboundary air and water pollution and ozone depletion were largely manageable. Inter-­‐governmental cooperation proved to be sufficient in addressing problems through norm-­‐constraining behavior. In those cases, either interests were shared in achieving regulatory effectiveness, or as was the case with ozone depletion, the availability of commercial substitutes and the small number of actors responsible for disseminating the ozone-­‐depleting chlorofluorocarbons (CFCs), meant governments more responsible for the harm should accept a disproportionate share of the adjustment costs, which were not too burdensome. This cooperation and relative success indicates that states are willing to promote global wellbeing by reliance on legal regimes when there are not large economic or security interests at stake. While the rules of new constitutionalism are dismantling some environmental regulations, promoting voluntary compliance, pushing countries to privatize major public services, new challenges are facing humanity where needed solutions go far beyond these alternatives. Most significantly, challenges associated with global scale concerns cannot be entrusted to the rationality or strategic priorities of a particular country or to the logic of market forces. Climate change is perhaps the most challenging single problem that humanity 5
See: Pacific Institute Globalization Program. Available at faces as a whole. In dealing with the adverse impact of climate change, drastic mitigation and adaptation policies are necessary. Yet, the shortcomings and limitations of even progressive new environmental law principles are dramatic. This is because climate change is filled with uncertainties and controversies, and likely requires major economic adjustments that will burden certain kinds of societal activities in major way. Moreover, climate change policies are against the interests of energy companies (coal, oil and gas), one of the most powerful and lucrative industries worldwide. It is now a scientifically known and widely accepted reality that green house gas (GHG) emissions are the most significant causes of planetary warming. Ironically, the way in which the free market economy operates is exacerbating GHG production because of greater storage and handling processes for various goods and more importantly the need for increased carbon based energy resources for production. Export oriented production goes with long distance, often excessive transportation. Ocean transportation carries nearly 80 percent of the world’s international trade in goods and container ships generally use the most polluting diesel engines in the world. However, the jurisdiction of the UNFCCC excludes the mandate to control GHG emissions associated with the shipping industry. Global warming pollution from shipping is significant and virtually unregulated.2 The impact of the global warming is geographically diverse. For instance, it has particularly raised earth temperatures in sub-­‐Saharan Africa producing severe drops in rainfall and droughts in ways that have generated intense competition for water and land use. Several African countries have experienced internal conflict as we have seen in Sudan. Climate change, as the US naval forces rightly confirmed, is becoming a security concern not only African countries, but also developed countries by way of forced immigration and other spill over impact.3 While Africa is the most vulnerable continent in relation to adverse impact of climate change, its relative contribution to the accumulation of CO2 in the atmosphere is minimal. Already home of the many of the world’s poor, the region has very little capacity to respond to the dramatic effects of climate change such as water and food scarcity, famine, and infectious diseases. Only a global community orientation could generate the political will to give serious implementation to forms of obligatory responsibility that would provide relief to the victims of global warming that are located well beyond the borders of rich countries with enough resources available to address the problem. Without a global solidarity norm reinforced by global institutions it will not be possible to deal humanely with the tens of millions of environmental refugees likely to flee across borders to escape from coastal flooding, drought, and shortages of food and water.(Laczko & Christie, 2009) However, a twentieth century institution of nation states, the United Nations, cannot consistently provide the legal remedy in the twenty-­‐first century, although its efforts have been notable in establishing a normative architecture with a global orientation in several areas, especially in relation to human rights. In the 1970s, a series of global conferences organized by the United Nations on human rights, population, women’s rights and environment were a step in the right direction. Its positive impact on global policy making and establishment of a network among transnational civil society organizations was 2
Shipping Impacts on Climate; A Source with Solution, July 2008. Available at:
_Report.pdf 3
See: National Security Implications of Climate Change for U.S. Naval Forces,2011 Available at: enormous. However, in late 1990s such initiatives were completely hijacked by powerful global economic forces and the role of the UN shifted from global policy making institution to a project proposing institution. The Millennium Development Goals of the 2000 are a vital example of this shift. The UN is too state-­‐centric and subordinate to geopolitical and geo-­‐economical pressures to provide the sort of global legal order that the most pressing challenges of our time demand. The yearly conference of the member parties of the UNFCCC (1992) clearly indicates this failure. It revealed that a UN sponsored effort to provide a voluntary framework for the reduction of the emissions of GHGs responsible for climate change failed because individual states were unwilling to cast aside their special interests and priorities connected to their economic success or developmental preoccupations to support goals beneficial for all. This makes global criteria and long-­‐term adaptation almost impossible to achieve. Considering failures of the last few years to reach consensus among the parties of the UNFCCC to reduce GHG emissions, it is not even clear whether there has been extension of the Kyoto Protocol or the creation of new legally binding commitments for all. Even though the members of the Kyoto Protocol only constitute 60% of the GHG producers, it is so far the only mandatory regulatory regime to reduce GHG emissions. As noted the Kyoto protocol embraced market based principles, to promote so called “clean development mechanisms” and to pressure countries to reduce GHG emissions by way of technological exchange or other means by doing a business with developing countries. However, China receives the biggest portion of help through clean development mechanisms instead of the LDCs because of the obvious reason: transnational corporations have big production platforms and markets for their goods in China. As of 2007, China became the biggest CO2 emitter, bypassing the US. Yet, as a developing country, China currently is not subject to any mandatory reduction according to the existing legal system. This development also gave a strong hand to climate change deniers, and for coal and oil industry lobbyists to manipulate the American public and the US Congress against any international commitment and national regulations to reduce emissions. However, one should not forget that China is the biggest exporter of the goods that developed world is using and consuming. In the current legal order, the calculations of GHG emissions do not consider this dilemma. No matter who consumes the goods, the exporting country is responsible for the emission of GHG rather than the consumers. This means that the Chinese carry the environmental burdens of producing GHG emissions while rest of the developed world uses Chinese exported goods. Meanwhile, pivotal developing countries like India, Brazil, Russia and Mexico continue to produce GHG emissions since they are not constrained by any mandatory global level framework. In this respect, it is civil society activists that are the main fighters in this arena, but without the resources or institutional authority to transform their concerns into a legally binding framework. Their main roles are those of global advocacy and civic action, which has an impact on public opinion that can, at times, alter debate on policy within states. It is notable that during the most recent climate change conferences in Copenhagen, Cancun and Durban, the governmental side of the summit kept civil society representatives out of official negotiations, removed them from the deliberations of governments, and their voices were silenced in the formal proceedings. Yet the transnational civil society consensus strongly supported an approach to mandatory reduction of carbon emissions that would distribute the economic burdens fairly and in accord with global, rather than national, wellbeing. What can be observed from global climate change diplomacy is that a global rule of law is beset by the primacy of global economic and national economic interests. This means that the norms will be implemented if they correspond with economic priorities rather than in response to the global threat and will be ignored if they do not. In effect, the essence of the rule of law is being violated with respect to the most important planetary and human concerns, because there exists a significant economic, and climatic inequality. However, concerns are growing more serious as the climate change agenda threatens human wellbeing in a number of different ways. For most of the modern era, states were legally unaccountable for what was done internally to individuals or to their natural resources, including the ultimate deprivations associated with slavery, dispossession, genocide and environmental destruction (or more appropriately eco-­‐cide). The state, if the conditions were appropriate, was legally responsible only to other states, but was sovereign with respect to its own population. After World War II, there was strong public pressure for a global human rights framework. Indeed, the United Nations provided the auspices for the Universal Declaration of Human Rights, and later facilitated the negotiation of the two Human Rights Covenants. These developments generated global norms. But it was clear that there was no intention to provide mechanisms of enforcement. (Falk, 2008) Similar global ethical rules are still soft law side missing enforceability in relation to environmental destruction. In the case of climate change, developed countries should be held accountable because of their historical responsibility for GHG emissions starting from the industrial revolution. However, the exiting legal framework does not allow such retroactive responsibility. Moreover, according to existing traditional international rules, countries cannot be held responsible if they excessively destroy their natural resources because of economic pressure or some other selfish reasons. Considering the most recent negotiations in UNFCCC, there is a consistent trend that to reduce the GHG emissions developed countries are pushing the voluntary regulatory option and market based solutions. Instead, it should be used mandatory GHG reduction system based on ‘common but differentiated responsibility’ that would be remedy to solve inequality among the states. Moreover global carbon tax should be implemented. This will be the most difficult one, as it will be strongly resisted by global corporate lobby and conservative governments. As mentioned above market based solutions are to slow to respond especially abrupt impacts of climate change. These impacts are significantly damaging not only to low-­‐income people throughout the world, but also low-­‐income countries. Strong market resistance will be felt, yet it is necessary to resist the impact of new constitutionalism on this matter. Responses to the Environmental Challenge If the political preconditions for global law are missing, are there any alternatives available to build a reasonable system to overcome such global problems? The first option I call the hegemonic response, e.g. enforcement of norms by leading states as was tried in the 2009 Copenhagen Climate Change Summit, excluding the entire member states of the UN, only including a few states, (US, China, Brazil, India, South Africa) under the leadership of US President Obama. This initiative led to a backlash at the 2010 Cancun Climate Change summit and revitalized the multilateralism of the UN, but not enough to find solutions for effective legal agreement on climate change. The 2011 Durban summit promised (but has yet to deliver) a legally binding agreement for all countries. It seems to be a failed attempt by far, yet it might be still possible in the near future if the United States and China together, could take the leadership role considering their hegemonic position in relation to global economy and climate change diplomacy. A second option involves promoting regionalism providing it is used with respect to equity and justice. E.g. the European Union provides a regional comprehensive framework of procedures, norms, and institutions for the establishment of regional law. The EU acts more responsibly as compared to the United States in the developed world in response to climate change. Yet, the recent financial crises, and the pressure from the US, did undermine the EU’s leadership of climate change diplomacy. A third option is associated with the common interests of states in stable interactions that has produced impressive dispute settlement mechanisms in the areas of trade, banking and international business transactions, with a record of compliance by governments, whether weak or strong. This solution reflects the power of global economic institutions and well organized capitalist interests. However economic crises in the United States and Europe and the recent failure of establishing a competitive alternative clean technology market give little hope for this option. This option can only work if a new institutional reform put forward such as creating a world environment organization (WEO) modeled after the WTO – an idea that has been in the reform agenda for a long time. There are several options on the table from reforming the UNEP by giving more power, to founding a new body. Needless to say, such an institution, modeling after the structural functionality of the global economic order should embody the principles of global democracy, such as equal participation, transparency and accountability in international institutions. These three options are interacting and neither are distinct alternatives nor necessarily contradictory to each other. In a decentralized, fragmented world, it is possible that these options could be used together if they enforced each other’s positive sides and eliminated their hurdles. To use them in an effective way, first and foremost, it is necessary to shift from the state centric, national interest and growth oriented free market principles that shape our current world order. Yet how would this happen? What has historically broken this pattern in the past is the shock effect of a climatic catastrophic event. Many of the major environmental agreements or public consciousness came after disasters such as Chernobyl, Bhopal, Exxon Valdez, Hurricane Katrina and Deep Horizon oil-­‐rig explosion; incidents that created huge publicity over environmental destruction. However, the impact of climate change, except extreme weather, comes slowly, sporadically, and most of the time it does not make a significant resonance in global level. Moreover, a successful global campaign run by climate skeptics financially supported by big multinational energy companies has had enormous influence through global mainstream media on governmental decision makers. There is still a significant disbelief among the US public who continue to be influenced by the right wing political establishment. Their message is clear that climate change is a big lie to destroy American capitalism. This unfortunate campaign uses the false rhetoric of scientific uncertainty, delays major policy initiatives against the dangerous effect of climate change in local, national and global level. Unfortunately, it will be too late, if there is no immediate action to stop the adverse effect of the climate change. Already we are experiencing its adverse impacts in various parts of the world, such as Russian fires, floods in Pakistan and Australia, recent global food crises and extreme weather events in the Mid-­‐
west, and the mega storm hurricane Sandy (November 2012) that left significant damage the East Coast of the United States. By far the most visible wake up call for American public was Hurricane Sandy. It was also a tangible example of how -­‐as Naomi Klein put in her most recent article in The Guardian “shameless disaster Capitalists” acted upon aftermath of the Sandy.4 Their suggestions for recovery were “public private partnership” or more precisely “privatization,” or creating “free trade zones in hard-­‐hit areas in which all normal regulations licensing and 4
“Hurricane Sandy: Beware of America’s Disaster Capitalists” Nov 6, 2012 taxes are suspended.” This corporate free-­‐for-­‐all would, “better provide the good and services victim need.” 5 By contrast a more desirable path to justice would be based on justiciability of human rights and a new juridico-­‐political framework involving effective legal structures to protect the environment and fight against climate change. The key lies in translating human rights as aspirations or moral claims into enforceable demands. The virtue of human rights to a healthy environment would be universally irrespective of the arbitrariness of economic situation or geographic location. At this stage of history, environmental rights are widespread but there is no generally accepted human right to a sustainable environment. Especially countries like the United States are still negotiating accepting economic and social rights as human rights. There are some developments here and there on this general direction such as Stockholm and Rio Declarations; African Human Rights Charter (Art.24); The Aarhus Convention (a regional agreement prepared by the UNECE on procedural rights on access to information, public participation in decision making and access to justice in environmental matters); and the resolutions of UN Human Rights Council.6 There are also some international and domestic court decisions, such as decisions of the European Court of Human Rights (Lopez Ostra v. Spain); the decisions of the ICJ on Nuclear Weapons and Transboundary River Cases (specifically Judge Weeramentary’s opinions); and Inuit Case against the US in Inter American Commission on Human Rights. However, bringing a human rights concept to the center of the climate change debate is not an easy task. In June 2012 several UN experts, and the High Commissioner of Human Rights called for Rio+20 to ground global commitments in human rights and for double accountability mechanisms to be put in place to ensure countries are held responsible for their actions. ‘Human rights and accountability are the hallmarks of the ‘best practices’ we have, locally and globally, for achieving genuinely inclusive, pro-­‐poor and environmentally sensitive outcomes,’ (Schutter, 2012). According to the UN Human Rights Council expert on Food Security, governments should be accountable by their international commitments in relation to climate change, just like peer review mechanism for human rights commitments. They also should complement this with their own domestic accountability system. Global environmental justice raises also question of intergenerational justice. Therefore to represent and protect rights of future generations establishment of a global ombudsman mechanism was proposed. Not surprisingly, there is a significant resistance from some governments and corporations who expect that opening the door of human rights claims to public and individuals will have a serious adverse effect of infrastructure projects and government decisions about energy resources. In sum, according to Sammy Adelman, there is a need to establish a new meta right for combating climate change that is transboundary, intergenerational, and cross sectoral. Even though the idea that some human rights are core, fundamental and more basic than others is problematic, climate change requires a different approach because of its truly universal nature of the threat it poses. (Adelman, 2010: 173). Given the scale of urgency of the threat, it is vital to think a new global Grundnorm as Hans Kelsen proposed a long time 5
Russell S. Sober, New York Times Online Forum, November 2012 [cited in Naomi Klein] On human rights and climate change, the most recent one is Resolution 18/22 adopted by the Human Rights Council on October, 17, 2011. ago.7 In the end, the future of the world depends on superseding a world of states with a new world structure based on equity, morality and justice, with people at its center, regional cooperation with global solidarity, and the celebration of cosmopolitan ethics and effective norms of global reach. List of Acronyms EU-­‐ European Union GHG-­‐ Green House Gases ICJ-­‐ International Court of Justice UNECE-­‐ United Nations Economic Commission of Europe IMF – International Monetary Fund LDC-­‐ Lease Developed Countries NAFTA – North American Free Trade Association UN – United Nations UNEP – United Nations Environment Program UNFCCC-­‐ United Nations Framework Convention on Climate Change WB – World Bank WTO – World Trade Organization BIBLIOGRAPHY: Appellate Body Report, European communities – Measures Affecting Asbestos and Asbestos containing Products, WT/DS 135/AB/R (March 12, 2001) Assadourian, Erik. 2006. “The State of Corporate Responsibility and the Environment.”In 18, Georgetown International Environmental Law Review, 571 Bodansky, Daniel. 2008. ‘Is There an International Environmental Constitution?’ University of Georgia School of Law, Research Paper Series. Available at: (Accessed, February 2011) Carruthers, David. 2008. Environmental Justice in Latin America: Problems, Promise and Practice, MIT Press, Dunoff, Jef and Trachtman, Joel. (eds.) 2009. Ruling the World, Cambridge University Press 7
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