Tag Archives: international

Gandhi’s Nightmare: Bhopal and the Need for a Mindful Jurisprudence (N. A. Patel, K. Petlakh)

Authors

Nehal A. Patel and Ksenia Petlakh

Keywords

mindful, legal theory, non-western, Gandhi, jurisprudence, transnational, international, human rights, environment, corporation, industrial

Abstract

For decades, activists and academics have been lamenting the disparate impact of global environmental decay on populations less endowed with legal resources. However, the implicit biases of legal theory itself remain unchallenged even when global resource disparities are addressed. Little attention has been given in transnational jurisprudence to how the thought sub structures of modern legal theory contain dispositions that advantage privileged interests and hamper transnational environmental justice efforts.

How can transnational jurisprudence change to become more mindful of the environmental impacts disproportionately experienced by the disempowered, and what conception of global society shall the law embody such that it earns the voluntary submission of the people? We explore these questions with a speculation on how Gandhi’s thought applies to transnational environmental jurisprudence. Gandhi’s thought contains four components that contain the necessary ingredients to evaluate the dominant frames that debilitate global environmental justice efforts. First, Gandhi presented his own construction of the individual’s relationship to the physical and social environments. Second, Gandhi’s thought defines the relationships between societies in a way that is free of Western assumptions of global governance. Third, his thought contains a critique of industrialization and presents a powerful alternative. Fourth, his thought contains a reconstruction of the purpose and function of law and legal systems for a world in which “progress” includes social equality and environmental protection. Comprehensively, Gandhi’s thought reinvigorates a decayed relationship between global environmental justice and transnational environmental jurisprudence by simultaneously redefining the human-environment relationship, legal theory, and dominant Western assumptions of the relationships between nations.

We directly apply Gandhi’s thought to the case law that resulted from the Bhopal chemical disaster, which is widely considered the worst industrial disaster in world history. Applying Gandhi’s thought to the Bhopal cases is useful for two reasons. First, the Bhopal cases contain several core legal doctrines that appear regularly in transnational cases. Second, there is a profound power imbalance between the civilians and the corporation that highlights the case’s relevance to global environmental justice. Through our analysis of the legal principles and the parties’ arguments in this case law, we illustrate our conception of a mindful jurisprudence of the transnational environment.

Citation

N. A. Patel and K. Petlakh, Gandhi’s Nightmare: Bhopal and the Need for a Mindful Jurisprudence (2014) Vol. 30, Harvard Journal on Racial & Ethnic Justice

Paper

Gandhi’s Nightmare: Bhopal and the Need for a Mindful Jurisprudence

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A Substantive Environmental Right: An Examination of the Legal… (S. Turner)

Author

Stephen Turner

Keywords

Global awareness, environmental degradation, environmental obligations, environmental rights, human right, clean and healthy environment, Environmental Rights, National, International, State Actor, Companies, Multinational Enterprises, Multilateral Development Banks, WTO

Abstract

Acute global awareness of environmental degradation seems at last to have created a consensus that environmental obligations should be imposed on decision-makers, whether state or non-state actors. However, although substantive environmental rights have been developed to a limited degree, there is as yet no international treaty or agreement that provides a globally accepted substantive human right to a good or clean and healthy environment.

This impressive book proposes such a right. In unprecedented depth, the author probes the legal obligations of decision-makers within states, companies, multilateral development banks and the World Trade Organization and develops a sound substantive human right that creates duties, both nationally and internationally, by which all decision-makers are legally bound to follow specific rules and procedures that would prevent or limit environmental degradation stemming from their decisions.

Among the major issues dealt with in the course of the presentation are the following:

—determination of an equitable form of compensation where less environmentally-degrading alternatives are not viable;
—anthropocentric approach vs. intrinsic rights for all ecosystems and natural systems; problems of fixing qualitative standards;
—problems arising from the differing economic capacities of states;
the extent to which state constitutional provisions relating to the environment can direct and constrain legislators and policymakers;
—effectiveness of responses to pressure upon multinational enterprises to take the environment into consideration in their decision-making processes;
—intergenerational equity;
—protection of indigenous and vulnerable communities and public participation in the environmental impact assessment process.

The annex provides the author’s draft accord between states for the development and realization of a substantive environmental right.

This is the first book to formulate a full-fledged international legal right ensuring that all peoples could enjoy an environment, in which all ecosystems and natural systems are protected, and to demonstrate how such a right could be instituted and work in practice. As such it not only represents a major contribution to our knowledge and significantly enhances our understanding of the issues examined, but also brilliantly exposes the obstacles blocking environmental progress and powerfully clarifies the way ahead. It will be of immeasurable value to anyone committed to turning back the tide of environmental degradation.

Citation

Stephen Turner, A Substantive Environmental Right: An Examination of the Legal Obligations of Decision-makers towards the Environment (Kluwer Law, 2008)

Book

A Substantive Environmental Right: An Examination of the Legal Obligations of Decision-makers towards the Environment

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Rethinking Macroeconomics for Sustainability (A. Nadal)

Author

Alejandro Nadal

Keywords

Macroeconomics, Environment, Policy Connection, Climate Change, Green Economy Initiative, Latin American Focus, Sustainability, Reform

Abstract

Macroeconomic policies have devastating effects on the environment. They shape the economic processes that drive deforestation, soil erosion, the exhaustion of living marine resources, greenhouse gas emissions, and the massive loss of biodiversity. Despite this, the vital connection between macroeconomic policies and the environment has thus far received little attention by the academic and the policy-making communities.

Rethinking Macroeconomics for Sustainability reveals the linkages between monetary, financial and fiscal policies, and the environmental degradation that threatens the planet’s biosphere. In doing so, it examines the complex lines of transmission from policy priorities all the way down to the effects at the local level, as well as analyzing the deep-seated relationship between macroeconomic policy models and their impacts on growth, peoples’ livelihoods and the environment.

Besides exploring the relation between macroeconomic and climate change policies, as well as efforts to ‘green’ the world economy, the book considers five key case studies in Latin American economies. Going beyond this, it also sets out specific policy recommendations, both at the national and international levels. All this is based on the incontrovertible premise that macroeconomic policies must to be redesigned in order to attain long-term sustainability objectives, and that monetary and fiscal policies are as important for environmental stewardship as they are for growth and prosperity.

Citation

Alejandro Nadal, Rethinking Macroeconomics for Sustainability (Zed Books, 2010)

Book

Rethinking Macroeconomics for Sustainability

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Using the Multi-Layered Nature of International Emissions Trading… (B.M. Frischmann)

Author

Brett M. Frischmann ( Cardozo School of Law, USA )

Keywords

Monitoring and enforcement regime, emissions trading, domestic emissions limitations, regulation, UNFCCC, Kyoto Protocol, buyer-liability, citizen-State arbitration mechanism

Abstract

This article designs an enforcement regime that maintains the integrity of the international emissions trading system in the face of significant political and economic incentives for States to shirk responsibilities. State noncompliance with international obligations to enforce domestic emissions limitations presents a significant risk for an international emissions trading system because the systematic utility and economic value of an emissions permit is ultimately dependent upon domestic enforcement. Emissions rights are products of regulation. In essence, they define the legal relationship between a domestically regulated entity and the host State. International trading of emission rights allows private transactions between foreign nationals to realign the legal relationship between the parties and their host States. The legal and economic value of such transactions is derived from the perceived risk of enforcement and the predicted value of relieving such risk.

This article focuses on the monitoring and enforcement of obligations undertaken by States that participate in an international emissions trading system. It abstracts from the Framework Convention on Climate Change and the Kyoto Protocol and envisions the following series of events leading to international emissions trading system:

1) A number of States sign an international agreement that commits each State to making reductions in its aggregate, national greenhouse gas emissions according to a detailed schedule.

2) Each State implements its international obligations through national programs, which may comprise various combinations of regulatory programs, from command-and-control to carbon taxes to emissions trading systems.

3) A subset of the States that signed the first “national commitment” agreement also sign a “founding agreement” that establishes an international emissions trading system by harmonizing the domestic emissions trading systems created under step 2.

Thus, two legal regimes arise from the agreements, an overarching climate change regime and a subsidiary international emissions trading regime. Of course, an international emissions trading system could evolve in many other ways. This article does not attempt to explain the global warming problem, the existing climate change regime, or the various regulatory options for domestic implementation; these issues are discussed extensively elsewhere in the literature.

Instead, the article focuses exclusively on the coordination problems that must be dealt with in negotiating the founding agreement for an international emissions trading system (step 3). Three interdependent components establish the contours an international emissions trading monitoring and enforcement regime, namely, (1) the monitoring institution, (2) the liability rule applicable to permits, and (3) the reprisal mechanism. States must work out the details of these components ex ante and incorporate them into the founding agreement for the international emissions trading system.

Finally, the article proposes a novel form of strict enforcement involving buyer-liability coupled with a citizen-State arbitration mechanism (similar to the investor-State mechanism in NAFTA chapter 11). The proposed mechanism provides an end-around the political, decentralized nature of international law.

Citation

(2001) 13 Georgetown International Environmental Law Review 463

Paper

Using the Multi-Layered Nature of International Emissions Trading and of International-Domestic Legal Systems to Escape a Multi-State Compliance Dilemma

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Climate Change Justice (E. Posner and C. Sunstein)

Authors

Eric A. Posner and Cass R. Sunstein

Keywords

Climate change; GHG reductions; adaptation; vulnerability.

Abstract

Greenhouse gas reductions would cost some nations much more than others, and benefit some nations far less than others. Significant reductions would impose especially large costs on the United States, and recent projections suggest that the United States has relatively less to lose from climate change. In these circumstances, what does justice require the United States to do? Many people believe that the United States is required to reduce its greenhouse gas emissions beyond the point that is justified by its own self-interest, simply because the United States is wealthy, and because the nations most at risk from climatechange are poor. This argument from distributive justice is complemented by an argument from corrective justice: The existing “stock” of greenhouse gas emissions owes a great deal to the past actions of the United States, and many people think that the United States should do a great deal to reduce a problem for which it is largely responsible. But there are serious difficulties with both of these arguments. Redistribution from the United States to poor people in poor nations might well be desirable, but if so, expenditures on greenhouse gas reductions are a crude means of producing that redistribution: It would be much better to give cash payments directly to people who are now poor. The argument from corrective justice runs into the standard problems that arise when collectivities, such as nations, are treated as moral agents: Many people who have not acted wrongfully end up being forced to provide a remedy to many people who have not been victimized. The conclusion is that while a suitably designed climatechange agreement is in the interest of the world, a widely held view is wrong: Arguments from distributive and corrective justice fail to provide strong justifications for imposing special obligations for greenhouse gas reductions on the United States. These arguments have general implications for thinking about both distributive justice and corrective justice arguments in the context of international law and international agreements.

Citation

(2007) University of Chicago Law & Economics, Olin Working Paper, 354.

Paper

Climate Change Justice.

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