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Fairness and International Environmental Law from Below: Social Movements and Legal Transformation in India

Published online by Cambridge University Press:  02 May 2012

KISHAN KHODAY  and
USHA NATARAJAN
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Abstract

This article considers fairness in international environmental law (IEL) in light of the convergence of two contemporary phenomena: the rise of social movements and the increasing power of large developing countries. These two trends will be determinative for the future of IEL. They have brought issues of fairness, equity, and justice to the forefront of contemporary IEL debates. Despite inability to adequately address issues of fairness at the international level, as demonstrated by negotiating gridlock at international summits, IEL can evolve in more equitable directions through the influence of subaltern experiences. This article examines domestic law-reform efforts of Indian social movements, focusing particularly on indigenous movements responding to extractive industries, with a view to determining international implications. The way states such as India address environment-related conflict, respond to demands for fairness, and evolve domestic understandings of inclusive and sustainable law and development will increasingly shape IEL.

Keywords

indigenous peoplesland rightsnatural resourcespost-colonial statesustainable development law
Type
INTERNATIONAL LAW AND PRACTICE: Symposium: Fairness in International Environmental Law
Information
Leiden Journal of International Law , Volume 25 , Issue 2 , June 2012 , pp. 415 - 441
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2012

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References

1 The terms ‘fairness’, ‘justice’, and ‘equity’ are used interchangeably in this article. In uniformity with this symposium issue's introductory article, M. Prost and A. T. Camprubí, ‘Against Fairness? International Environmental Law, Disciplinary Bias, and Pareto Justice’, at footnote 3, we use the term ‘fairness’ as defined by T. Franck, Fairness in International Law and Institutions (1997), 7: ‘the fairness of international law, as of any other legal system, will be judged, first by the degree to which the rules satisfy the participants’ expectations of justifiable distribution of costs and benefits, and secondly by the extent to which the rules are made and applied in accordance with what the participants perceive as right process.’

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