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International Law and Ecological Debt

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According to Antoni Pigrau, Professor of Public International Law at the Catalan Universitat Rovira i Virgili (URV) “Classic international law (1648-1945) can be seen as a legitimizing tool for the domination of colonial peoples and territories by the interests of so-called ‘civilized nations’.” Although some things have changed since 1945, the EJOLT report “International Law and Ecological Debt” explains how the current set of international laws still has a lot of evolution to do, especially on environmental matters with a cross-boundary character.

Although the concept of ecological debt has been discussed for over two decades, the legal basis for calculating an ecological debt remains fragile. The authors start with a definition that has found its way in some policy circles: “Ecological debt is debt accumulated by Northern countries towards Southern countries for: a) export of primary products at very low prices, not including the environmental damages caused at extraction and processing sites or pollution on a global scale; and b) the disproportional, free or very cheap occupation of space and environmental services when depositing or emitting waste derived from production Processes.” However, a gap between such a definition that is used by a rising number of social movements and mainstream legal narratives still needs to be bridged.

Evidence of the ecological debt is particularly apparent in the issues of climate change, biodiversity and hazardous waste. To regulate these, international law has provided distinct regimes around the UNFCCC, the CBD, and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. They all stumble over formidable obstacles in trying to be effective. The current International courts are not well-equipped for environmental controversies. The International Court of Justice only deals with inter-state claims and the International Criminal Court can only deal with environmental damages if they were caused in the context of the commission of war crimes as defined in the ICC Statute.

While recognising the need for a legal narrative, the authors conclude that “The main obstacle to operationalising a legal format for the concept of ecological debt is that the necessary political conditions for opening up a formal debate about the concept in inter-governmental forums do not exist.”

As the operationalization is in the first place a political issue and not a technical one, EJOLT is producing a policy brief that sums up the gaps in policy and proposes ways to fill them – starting in the EU. After recognising that Rio Principles 2 and 13 – made in 1992 – have not been followed through, the research team advices EU policy makers to start with – among others:

  • A yearly policy coherence check of EU policies affecting global sustainability
  • A review of the European Sustainable Development Strategy (EUSDS) to emphasise Europe’s global responsibility;
  • A revision of the Common Agricultural Policy to strengthen food sovereignty

Full policy briefing will follow soon.

These are a few measures needed to end the accumulation of ecological debt. They are all directed towards creating corporate and public accountability. At the same time, compensation for accumulated ecological debt is also needed. The EU should initiate innovative new funding mechanisms like the Financial Transaction Tax or a Footprint Tax, ban tax havens and set up a specific “Green Revolving Fund” that will use the money for implementation of outreach projects that eliminate ecological debt on local levels.

This is not an utopian vision but an ongoing issue. Ecological debt is already operationalized in some courts. When coalitions of local, national and international environmental and justice organisations confront corporations like Texaco, Shell, Dow Chemicals and Eternit in court, these can be seen as examples of partial compensation for ecological debt. In some cases justice has already been served – but in many others the weakness of the international legal framework means that the justice doesn’t reach the affected people.

Of course, global patterns of ecologically unequal exchange and other injustices will not be corrected just by minor adaptations of the existing overall paradigm. Rather, corrections will require a profound reconceptualisation of global governance, legal institutions and our economic system to achieve environmental and social justice. The formal recognition of the environment as a global public good combined with a major focus on human rights in international environmental regimes is considered a first pragmatic step in this direction.

The authors conclude that ecological debt can be useful (conceptually and financially) to advance a more just and fair system of international relations and an inclusive international law framework.

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