Legal and Moral Implications of the Principle of Equity - Article Example

LEGAL AND MORAL IMPLICATIONS OF THE PRINCIPLE OF EQUITY INTRODUCTION Sustainable development had been described as meeting the present requirements without undermining the ability of the future generations to meet their needs.1 This idea had been reiterated frequently during the Rio Declaration. Furthermore, sustainable development had been underlying the discussions leading to the Stockholm Declaration.2 Thus, Principles 1 to 4 of Rio declaration had emphasised upon the necessity to exercise restraint upon the use of natural resources, so as to comply with the carrying capacity of the earth, in order to benefit the present and future generations. Whilst expatiating upon the sustainable development paradigm, the Rio Declaration had introduced several substantive and procedural environmental legal indicators.3 However, the implementation of this declaration had met with several difficulties, during its practical implementation. As such, the Rio and Stockholm Declarations have been vociferous in their demand for improving the law relating to environmental liability and compensation. The Stockholm Principle restricts itself to the international law, whereas the Rio Principle goes further and refers to the national law as well. Despite the forthrightness stipulated by these mandates, nations have preferred to adopt all possible means to evade these declarations. As such, the various nations have displayed a proclivity towards establishing private law regimes that concentrate upon the liability of private entities.4 Evidently, there is a clear attempt to divert attention and blame from state entities. The goal of sustainable development is to bring together development and the environment.5 The international environmental law tends to favour development, in any dispute between environmental and developmental concerns. From this perspective, the international law pertaining to sustainable development constitutes the subsuming of environmental law into the law of development.6 In addition, initiatives, such as the commendable endeavours of the International Law Commission, specifically the draft Principles on Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities; and the UNEP Guidelines for the Development of Domestic Legislation on Liability, Response Action and Compensation for Damage Caused by Activities Dangerous to the Environment have the capacity to provide a basic standard for environmental liability and compensation problems, both at the national, as well as the international level. In light of these developments, it could be contended that the anticipations of legislative improvement arising from the Rio and Stockholm Declarations have been accomplished to a major extent.7 However, in practice it proved to be a myth. Accordingly, the Rio Declaration at Principle 7 proclaim common but differentiated responsibilities, as being indispensable for sustainable development at the global level. It exhorts the nations of the world to come together and promote global partnership that is aimed at conserving, protecting and rejuvenating the integrity and wellbeing of the ecosystem of the earth. The various nations make different contributions to the degradation of the global environment. Therefore, they have common, and at the same time diverse responsibilities, with regard to the environment.8 The developed nations have accepted their responsibility, during the course of their international pursuit of sustainable development. This reflects the importance attached by their societies to the global environment, and the financial and technological resources at their disposal. The 1992 United Nations Conference on Environment and Development generated acrimonious and bipolar debate that served to distance the developing nations from the developed countries.9 There had been a special reference towards the economies that were in transit. However, there was little if any regard towards the resolution of the problem related to the position of Central and Eastern Europe, with respect to their common but differentiated responsibilities.10 There was also scant regard for the disparity between the developing and developed nations. All the same, the restructuring process could generate various types of assistance to the global partnership that had been described in Principle 7 of the Rio Declaration, which are independent of material wealth. The previous paradigm of development had been clearly unsustainable. This required the process adopted by the nations of Central and Eastern Europe, while carrying out their responsibilities, to be informed in a unique manner. As a consequence, progressive development of environmental law could constitute a form of assistance.11 Nevertheless, it is beyond the capacity of scientific evaluations to describe equity and the manner in which the sharing of equitable burden has to be implemented in the Convention and the climate policies. However, such assessment can prove to be beneficial in describing the consequences of alternative options and their moral foundation. In addition to providing several opportunities, the interconnectedness of climate change, equity, and sustainable development constitutes a grave threat to the developing nations.12 As such, the developing nations have to address their immediate development obligations. The situation becomes all the more difficult, due to the mitigation challenge relating to greenhouse gas emissions that is imposed upon them. In the year 2010, greenhouse gas emissions from the developing world were approximately 50% of the total global emissions. 13 During the previous decade, such emissions from the third world had increased to the extent of the increase in the total global greenhouse gas emissions. The future does not hold out much hope, as in the absence of joint action to reduce these emissions, this situation stands to deteriorate. The global greenhouse gases emissions depict the distinct possibility of increasing, and most of this activity can be expected to emanate from the developing countries. The reason for this development is the unprecedented economic and industrial upsurge in the economy of several of the developing nations. This increase in the greenhouse gases emissions have been accompanied by several beneficial developments. Some of these being decrease in the poverty rate, decline in child and maternal mortality, decrease in the prevalence of a number of preventable diseases, better access to safe drinking water, and improved sanitation. In addition, there has been an increase in the Human Development Index in several regions of the world, with greater convergence. This unprecedented progress in the developing world has transpired on a vast scale with tremendous rapidity. As a consequence, the erstwhile economic and geopolitical balances have been rearranged. 14 The developing nations have been unable to reduce their greenhouse gas emissions, as the developed world has not made it cost effective for these nations to adopt sustainable production techniques. Accordingly, the developed nations are responsible for safeguarding the climate. They have to oppose any moves that could bring about climate change. The United Nations Framework Convention on Climate Change (Kyoto Protocol) has accorded the utmost of importance towards the responsibility of nations to prevent climate change. This convention has promoted the principle of common but differentiated responsibilities. The latter states that the developed nations should come to the fore in the task of combating climate change and the adverse effects ensuing from such change.15 This has also been projected by Article 10 of the Kyoto Protocol of 1997 and Principle 7 of the Rio Declaration on Environment and Development of 1992. Human activity, since the commencement of the 19th century, has caused more than 2,000 billion tonnes of carbon to be released into the atmosphere. This period witnessed an increase in the global concentration of carbon dioxide from 280 parts per million to the present day 379 parts per million. In addition to carbon dioxide levels, the level of other greenhouse gases has also increased. The total concentration of these gases in the atmosphere has increased to 430 parts per million. Moreover, the annual growth rate of greenhouse gases has been observed to be two parts per million, at the very least.16 In addition, underdevelopment has been recognised as the major cause for the environmental problems of the developing world. It is now well established that millions of individuals eke out an existence that is devoid of the basic necessities required for leading a decent life.17 These people are bereft of sufficient food, clothing, shelter, education, health, and sanitation. Under these circumstances, the developed nations should not neglect the necessity to protect and improve the environment, during their unceasing endeavours to improve their development. Moreover, the developed world should make strong efforts to reduce the hiatus between the developing world and their countries. It is a well-recognised fact that environmental issues in the industrialised nations, are frequently the outcome of technological development and industrialisation.18 The population of the world experiences natural growth. In turn, this growth continuously poses problems related to the preservation of the environment. This situation demands the formulation of policies and the adoption of measures that will satisfactorily address these issues. Human beings are the most valuable constituents of the world. They bring about many beneficial outcomes, such as social progress, creation of social wealth, development of science and technology, and the transformation of their surroundings. With the passage of time, this capability of humans increases.19 The principal international treaties, with regard to their negotiation, conclusion, and entry into force, depict a colossal effort that has achieved remarkable success. This view emerges upon examining the number of participating nations with regard to these treaties. For instance, the UN Charter boasts of 191 State Parties, the WTO has more than 150 members, and the Non-Proliferation Treaty has 189 signatories. The degree of difficulty in achieving political accommodation amongst the members of the comity of the nations has been clearly demonstrated in the Doha Round of the WTO.20 At present, there has been a proliferation of bilateral free trade agreements. Thus, several issues related to ocean governance and weapons of mass destruction are being dealt with by means of non-treaty arrangements, such as resolutions of the UN Security Council and the Proliferation Security Initiative. With regard to climate change, the inability to compel the developed nations, especially the US, to fulfil their promise to better address climate change, comes to the fore in a glaring manner. The effects of climate change are chiefly envisaged by the developing nations, which are devoid of the resources and capabilities to adapt to such change.21 In addition, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal of 1989, which intended to ensure environmental justice for the developing countries, failed in this endeavour. For instance, it attempted to compel the developed and industrialised countries to manage their hazardous wastes, without transporting them to the underdeveloped nations that lacked proper arrangements to dispose of such wastes. However, the developed nations, such as Australia circumvented these prohibitions, by resorting to Article 11 agreements. This Article provides some relaxation from the strict prohibition on the dumping of hazardous waste. This clearly establishes violation and disregard for the spirit of the Basel Convention by the developed nations. As such, most of the environmental problems of this planet can be attributed to the activities of the developed nations. However, the brunt of the adverse effects of global environmental degradation have been borne by the developing nations. This inequitable situation arises from the scant administrative infrastructure, paucity of resources, and vulnerable geographical location of the developing world.22 Another difficulty envisaged by the relations between the developed and developing nations are those that arise from procedural inequities. The developed nations effectively make the decisions in the WTO, International Monetary Fund (IMF), and the World Bank. The developing nations are kept at a distance and ignored, moreover, their opinion is neither sought nor entertained. The very same situation obtains in the various multilateral environmental treaty forums. 23 This distressing situation persists due to the economic and political influence of the developed nations. The fate of the smaller nations of the developing world is indeed dismal. Climate change jeopardises their very existence, but they are devoid of any legal device to prevent this impending catastrophe. As such, these nations cannot expect to be compensated, or to bring about an end to such dangerous activity.24 It has rightly been contended that the environmental disputes between the rich and poor nations of the world are the outcome of the colonial policies that have been continued by neo-colonialism. These polices have made the European nations rich, by the wholesale plunder of the Asian and African nations’ vast natural resources. 25 It has been the tragedy of the developing nations that despite having overthrown the crippling and exploitative yoke of their erstwhile colonial masters, namely the European nations, they have been unable to eliminate their debilitating economic dependence on the export of the basic commodities. The Group of 77 (G-77) was the initiative of these nations to form a concerted force, and to bring about import substitution, by manufacturing essential commodities within their country. In addition, these nations demanded of the industrialised and wealthy nations to permit them complete and competent participation in several important areas; such as, transfer of technology, waiver of debt, special trade benefits, and global governance.26 Environmental justice has emerged from the fundamental struggles witnessed in the developing and the developed world. This movement commenced in the 1980s, with the American public protesting against the location of hazardous waste disposal units and polluting industries in the regions inhabited by the minorities and the low-income earning communities. Subsequently, this movement, rapidly encompassed additional environmental problems.27 Those who championed environmental justice were quick to point out that there was considerable distributive injustice, such as the disproportionate exposure to environmental hazards, procedural inequity in taking decisions related to the environment, corrective injustice resulting from poor environmental enforcement, and the prevalence of social injustice due to environmental deterioration being intertwined with the other evils of the poor and the ethnic minorities. 28 In addition, it has been frequently pointed out that corrective justice demands the provision of compensation for the traditional injustices heaped upon the developing nations by the rich nations. Furthermore, corrective justice enjoins that the developed world should bring about a cessation of such exploitative conduct, vis-à-vis the poor nations of the world. 29 Every continent on the face of the earth is now witness to movements aimed at restoring environmental justice. These movements have the local and indigenous communities at the vanguard and there is considerable opposition to the development projects that pose a major threat to their livelihood, natural resources, and land.30 CONCLUSION The Rio and Stockholm Conventions established a set of principles to secure environment sustainability. However, the developed nations failed to fulfil the obligations stipulated in these conventions. The developed nations did not transfer sustainable technologies to the developing nations, which would have helped them to cope up with the principles of environmental sustainability. Moreover, the developed nations made the developing nations, their guinea pigs, with respect to their experiments on hazardous wastes. In addition, in cases of conflict between development and the environment, the international law favours development. This automatically suppresses the principles of sustainable development. Moreover, the Basel convention, which is intended to protect the developing countries from being rendered the dumping ground for hazardous wastes, by the developed nations, proved ineffective in practice. As such, it can be surmised that environmental sustainability has been relegated to the background by the developed nations. 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