Environmental Law and Justice in Context

As environmental law as a legal discipline comes of age, it becomes appropriate to subject it to critical appraisals of various shapes and forms. One such appraisal is undertaken in “Environmental Law and Justice in Context”, edited by Jonas Ebbesson and Phoebe Okowa of Stockholm University and Queen Mary University respectively, with special reference to justice and fairness. As noted in the introduction by Ebbesson, such assessment entails multiple considerations of intergenerational, interspecies and inter-state conceptions of justice. In light of this, it may be asserted that any notion of justice is inherently vague, as noted in the chapter by Brunnée, by reference to Rosalyn Higgins’ 2006 address to the ASIL arguing “what is just to one person is totally unfair to another”, thus deeming the application of justice in environmental and international settings impractical. In spite of this, the book is well-worth reading as it holds a number of relevant arguments and observations in relation to justice, the environment and international law.

For instance, scholars and students of the emerging discipline of international administrative law are likely to find the contributions by Malgosia Fitzmaurice, Jona Razzaque and Qun Du relevant as they all deal with, albeit in regional and national settings, issues of public participation and access to justice. In particular the chapter by Fitzmaurice may be of interest here as it deals with the 1998 Aarhus Convention, which has received a vast amount of attention in the name of international administrative law given its innovative international focus on procedural mechanisms usually reserved for domestic spheres. In addition to this, the reader with particular interest in European affairs will find Ludwig Krämer’s contribution worth reading. Krämer rightly points out that one will have a hard time trying to find environmental justice legislation on European Community level. Here it might be worth noting that environmental justice as a concept emanated from the US where, throughout the 1970s and 1980s, minority communities pointed to the unfair and disproportionate siting and distribution of environmental harms under the heading of environmental injustice. Notwithstanding this, Krämer points to a number of cases where the ECJ has dealt with issues of disproportionate charges over environmental pollution. These cases, however, are few and differ from the environmental justice complaints in the US. Although Krämer does not deal with the issue, it could be argued that the clear lack of environmental justice law and policy on EC level is in stark contrast to the often disproportionate levels of environmental pollution under which Roma travellers live – one of Europe’s largest groups of minorities.

Similarly, other chapters of the book will be of interest to international lawyers in general although the main theme of the book is that of environmental justice. For instance, the contribution by Dinah Shelton identifies the three levels of morality, equity and law as being encapsulated in international justice. Morality is rooted in natural law, which, although under critical scrutiny, is, in Shelton’s eyes, seen as filling gaps in positive law. Equity entails considerations of distributive fairness both intra- and intergenerationally, while the emphasis on law entails adherence to the rule of law. Shelton argues that adherence to these norms may help produce better compliance with international environmental agreements, as witnessed under the concept of common but differentiated responsibility, while in addition pointing out, by reference to Thomas Franck’s important work on justice in international law, that promoting justice is simply the right thing to do.

Likewise, the contribution by William Twining will be of general interest. Twining deals with the jurisprudential side of justice and calls into question the applicability of John Rawls’ theory of justice. In light of Rawls’ well-known scepticism toward extending his “theory of justice” to the international setting (as laid out in his The Law of Peoples) and “the decline of sovereignty, and the permeability of borders”, Twining calls for a “well-constructed and coherent political theory” capable of securing fair arrangements of coexistence. As a possible answer to this call, Twining goes on to discuss the ideas of Thomas Pogge, whose work on cosmopolitan justice is, like the work of Peter Singer, extremely critical of existing international power structures. For instance, Pogge is well-known for advocating the existence of negative duties requiring us not to maintain unfair organisations and institutions. Although it may be argued, as Twining does, that Pogge transfers “Rawlsian justice to the world stage more convincingly than Rawls”, he correctly points out the limited application of Pogge’s ideas to the environmental sphere. In addition to this, it might be questioned whether Pogge’s negative duties are likely to have as much effect in terms of alleviating global poverty as Pogge argues.

In light of the discussion on the theoretical application of justice, the chapter authored by André Noelkaemper puts forward a more familiar theme for international lawyers. Noelkaemper calls into question whether incidents of domestic environmental justice ought to be an international issue at all. Not surprisingly perhaps, given the often evasive nature of international environmental law, Noelkaemper finds that the prevailing status of international law in relation to the environment is still severely restricted by the doctrine of sovereignty. Noelkaemper rightly asserts that this situation is not “based on some immoral principle” which must be changed at any price. Instead it is grounded in notions of self-determination, which in itself is a central value of international law. For the many environmentalists to whom this will prove a disappointment, comfort may be found in the subsequent chapter by Jonas Ebbesson. Ebbesson, like Twining, is critical of the limited application of Rawls’ theory of justice in international spheres drawing on the well-know social contract criticism of Rawls by Nussbaum. Instead, Ebbesson argues that in environmental settings focus ought to be directed towards citizens rather than states when it comes to, for instance, rights of participation. He argues that the existing regimes of environmental impact assessment, known from domestic settings, ought to be extended to international settings. Ebbesson points out that leaving the right to e.g. make representations in international settings to states only overlooks the fact that in some countries governments cannot be said to fully represent their populations. To Ebbeson, this problem is further exacerbated when the environmental harm is caused by corporations. Ebbesson puts forward a spirited defence against the criticism that such arguments amount to no more than legal imperialism and argues that justice requires that the people affected by a harm get to have a say. This final point is indeed valid although it is all too often not adhered to.

Moreover, the chapters by Karen Mickelson and Jutta Brunnée, dealing with justice under the international regimes set up to address ozone depleting substances and climate change respectively, are of interest. Interestingly, Mickelson argues that the notions of justice and fairness pursued under the negotiations of the 1985 Vienna Convention and the Montreal Protocol, by mainly developing countries, amounted to a specific type of environmental justice rather than merely traditional notions of distributive and corrective justice. On the other hand, Brunnée is sceptical of whether the concept of common but differentiated responsibility, which plays a prominent role in the climate change regime, amounts to a specific concept of “climate justice”.

Unfortunately, this review cannot, due to restrictions of space, offer an assessment of all of the other fascinating and relevant chapters. However, other chapters worth highlighting include the ones authored by Phoebe Okowa on environmental justice in armed conflicts, a contribution by Hans Christian Bugge assessing the important polluter pays principle and its compatibility with justice, a chapter by Nikolas de-Sadeler on environmental justice and international trade, Ellen Hey’s chapter on justice and global water law as well as the chapter by Philippe Cullet on environmental justice and genetic resources.

Thus, this edited collection of papers, which is the outcome of the Conference on Environmental Law and Justice held at Stockholm University in September 2006, together and individually addresses some very important and timely questions. First and foremost, this edition is important simply by virtue of it discussing the emerging concept of environmental justice. This is even more so in light of the inherent vagueness of environmental justice. This volume does an excellently good job of unravelling the meaning of a concept which is bound to become very important in the years to come. Secondly, although environmental law and regulation in general is often taken to rest on benevolent and noble assumptions, serving a wide spectrum of interests, it is evident that this is not always the case. This book makes an important contribution to the critical literature when questioning existing structures in the name of justice. While readers may be critical of the, at times, unsuspecting attention afforded to cosmopolitan ideas of justice in some of the contributions, Ebbeson and Okowa have done an excellent job in compiling a broad portfolio of legal scholars from across the world all putting forward solid contributions in the name of environmental justice.

In conclusion, this edited collection ought to be read by anyone with an interest in international environmental and those interested in gaining a critical understanding of the evolving concept of environmental justice.

Environmental Law and Justice in Context, Jonas Ebbesson and Phoebe Okowa (eds.) CUP 2009