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International Environmental Law After Rio: The Continuing Search for Equity

Published online by Cambridge University Press:  28 September 2012

Allen L. Springer
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Abstract

Springer focuses on the nature and challenges of “leadership” in contemporary environmental diplomacy since the 1992 Earth Summit in Rio de Janeiro, Brazil. He raises the importance of the issue of equity in international environmental law. Springer argues that competing conceptions of what is fair and just lie at the heart of much of the diplomatic disagreement over major environmental initiatives such as those debated at the Rio conference.

Type
Articles
Information
Ethics & International Affairs , Volume 7 , March 1993 , pp. 115 - 129
Copyright
Copyright © Carnegie Council for Ethics in International Affairs 1993

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References

1 For a general discussion of the role of equity in international law see Janis, Mark W., An Introduction to International Law (Boston: Little, Brown and Co., 1988), 54–68Google Scholar; and Lapidoth, Ruth, “Equity in International Law,” in American Society of International Law (ASIL), Proceedings (1987), 138–47.Google Scholar

2 In the Gulf of Maine case, the International Court of Justice applied “equitable criteria” to define the maritime boundary between the United States and Canada, leading one observer to warn darkly of “risking everything on the roulette wheel of justice.” Such sentiments are hardly conducive to an expanded use of equitable principles by international adjudicative bodies. See Clain, Levi E., “Gulf of Maine—A Disappointing First in the Delimitation of a Single Maritime Boundary,” Virginia Journal of International Law 25 (1985), 521Google Scholar.

3 Johnston, Douglas M., “The New Equity in the Law of the Sea,” International Journal (1975–76), 79–81CrossRefGoogle Scholar.

4 Black, Henry Campbell, Black's Law Dictionary, 4th ed. (St. Paul, MN: West Publishing Co., 1968), 634Google Scholar.

5 For a detailed discussion of the application of the equitable utilization principle in the management of transboundary rivers, see Experts Group on Environmental Law of the World Commission on Environment Development, and, Environmental Protection and Sustainable Development (London: Graham and Totman, 1987), 72–75.Google Scholar; Bourne, Charles B., “International Law and Pollution of International Rivers and Lakes,” University of British Columbia Law Review 6 (1971), 120–22Google Scholar; Dickstein, H.L., “International Lake and River Pollution Control: Questions of Method,” Columbia Journal of Transnational Law 12 (1973), 487–519Google Scholar; Gaja, G., “River Pollution in International Law,” Recueil des Cours 1 (1973), 364–78Google Scholar; and Lester, A.P., “River Pollution in International Law,” American Journal of International Low 57 (1963), 828–53CrossRefGoogle Scholar.

6 For a discussion of the general problem of defining these “threshold” values, see Springer, Allen L., The International Law of Pollution: Protecting the Global Environment in a World of Sovereign States (Westport, CT: Greenwood Press, 1983), 63–88Google Scholar.

7 There is no attempt here either to rank these concerns in terms of importance or to suggest that the criteria outlined here exhaust the list. Examples are used for illustrative purpose only.Google Scholar

8 This definition differs significantly from more traditional concepts linking pollution to damage to human interests. See Springer, The International Law of Pollution, 68–73.Google Scholar

9 Among the many recent analyses of this issue are Zheng-Kang, Cheng, “Equity, Special Considerations, and the Third World,” Colorado Journal of International Environmental Law and Policy 1 (1990), 57–68Google Scholar; Magraw, Daniel Barstow, “Legal Treatment of Developing Countries: Differential, Contextual, and Absolute Norms,” Colorado Journal of International Environmental Law and Policy 1 (1990), 69–99Google Scholar; Nanda, Ved, “International Environmental Protection and Developing Countries' Interests: The Role of International Law,” Texas International Law Journal 26 (1991), 497–519Google Scholar; and Shue, Henry, “The Unavoidability of Justice,” in Hurrell, Andrew and Kingsbury, Benedict, eds., The International Politics of the Environment (Oxford: Oxford University Press, 1992), 373–97Google Scholar.

10 Principle 23 states: “[I]t will be essential in all cases to consider…the extent of the applicability of standards which are valid for the most advanced countries but which may be inappropriate and of unwarranted social cost for the developing countries.”.Google Scholar

11 According to Principle 7, “In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.”.Google Scholar

12 For a comprehensive analysis of the polluter-pays principle, see Gaines, Sanford E., “The Polluter-Pays Principle: From Economic Equity to Environmental Ethos,” Texas International Law Journal 26 (1991), 463–96Google Scholar. See also its effective endorsement in Principle 16 of the Rio Declaration: “National authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.”

13 On this problem, see Judith Marquand, “A Note on Some Problems of Transfrontier Pollution,”OECD, in, The Economics of Transfrontier Pollution (Paris: OECD, 1976), 88Google Scholar.

14 Although it may be unusual to treat efficiency as an ethical consideration, it does make sense in an environmental context. Moreover, the way the problem of efficiency is confronted in practice makes it clear that states treat it as more significant than simply another criterion for determining “desirable policy.”.Google Scholar

15 Brown Weiss, Edith, In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity (Dobbs Ferry NY: Transnational Publishers, 1989Google Scholar).

16 D'Amato, Anthony, “Do We Owe a Duty to Future Generations to Preserve the Global Environment?” American Journal of International Law 84 (1990), 195CrossRefGoogle Scholar.