Reconstructing international law for environmental justice
Given the internationalisation of problems, the interdependence of states, the introduction of new actors beyond states themselves and the relativisation of sovereignty, a new institutional framework for international law is needed.
Current international law has neither been able to shape a real, nor an equitable, answer to the global ecological crisis under the paradigm of sustainable development. There is widespread consensus about the fact that governmentality and governance of the Earth System require a major overhaul if the international community hopes to meet that challenge. A reinterpretation and reconstruction of the existing international legal order in terms of global constitutionalism offers a plausible way to mitigate and correct some of the deficiencies. Global patterns of ecologically unequal exchange will not be corrected by minor adaptations of existing international regimes. Nor will change come through the formal enactment of a given principle alone, as there is no inevitability of global (environmental) justice through law. Rather, what it will take is a profound re-conceptualisation of global governance in cosmopolitan terms. In this sense, the formal recognition of the environment as a global public good, combined with an enhanced human rights approach to international (environmental) regimes is considered to be a pragmatic first step in this direction.
Global constitutionalism as well as Third World Approaches to International Law (TWAIL) promote specific items of transparency and accountability by international institutions and transnational corporations, the enhancement of an effective use of the language of rights by injecting peoples’ interests in non-territorialised legal orders, and the promotion of sustainability and equity. These parallel research agendas therefore seem to converge in a ‘global environmental constitutionalism’ (Kotzé 2012, Schwöbel 2011). Based on a the social, institutional, normative and analogical perspectives or dimensions of global constitutionalism global constitutionalism implies inter alia the institutionalisation and legitimisation of global governance by: posing limits on single loci of power (checks and balances); increasing participation and representation; enacting higher (constitutional) laws based on a common universal value system, including fundamental rights; and identifying common interests of humankind to be pursued as overarching objectives by any public authority.
Also significant criticism has been raised with respect to the prospects of assessing international environmental law in terms of constitutionalism. Indeed, proponents acknowledge that for the time being (environmental) constitutionalism cannot realistically be considered as a globally dominant ideology, nor can this be expected to come about any time soon. However, a gradually increased process of domestic constitutionalisation of law and governance in general, and environmental law and governance specifically, could contribute in a bottom-up way to establish global environmental constitutionalism as a dominant prevailing ideology (Kotzé 2012).
Contributions by social movements
In theory, constitutionalism advocates for a global order in which more open, representative and participative law-making and law-enforcing processes and institutions shape an international economic system that fosters more equal patterns of exchange and is also more sensitive for values such as ecological integrity and human dignity. Its deliberative facet actually seems to allow the integration of counter-hegemonic claims, such as those implicit in environmental justice or ecological/climate debt, into the collective discernment of competing notions of the common good. Yet, from a TWAIL perspective, some aspects of global constitutionalism are probably still very close to hegemonic or imperialistic narratives of international law.
Justice as a core for a global constitutionalism: an institutional alternative to inequality
Some progress has been made in recent times in the constitutionalisation of international law, at least in theoretical terms. Combining the limited and vulnerable nature of available resources with the idea of global citizenship, defined by equal conditions of access to the benefits of social metabolism and equal ecological charges, environmental justice can be the framework for defining the basis of global constitutionalism. In this sense, environmental justice could be defined in terms of equitable access to natural resources and environmental services derived by ecosystems, and fair distribution of the burden from their uses. The ecological debt would in this context be the expression of a historical environmental injustice both territorially, through the unequal exchange of resources between the periphery and the centre of the world economy, and temporally, through the overuse of available resources to the detriment of future generations.
The determination of ecological debt could be used to raise funds for the design and implementation of a legal international framework addressed to change the current ways of exchange and relieve present pressure on nature.
This glossary entry is based the following EJOLT Report
Pigrau, A., Borràs, S., Cardesa-Salzmann, A., Jaria i Manzano, J. 2013. International law and ecological debt. International claims, debates and struggles for environmental justice. EJOLT Report No. 11, 128 p.
References
Kotzé, L. J. (2012). Arguing global environmental constitutionalism.Transnational Environmental Law, 1(01), 199-233.
Schwöbel, C. F. J. (2011) Global Constitutionalism in International Legal Perspective. NL: Martinus Nijhoff Publishers.
For further reading
Brunnée, J. (2009) Climate Change, Global Environmental Justice and International Environmental Law in: Ebbesson J. and P. Okowa (eds), Environmental Law and Justice in Context, 316- 328.
Useful website
http://journals.cambridge.org/action/displayJournal?jid=GCN
EJOLT glossary editors: Hali Healy, Sylvia Lorek and Beatriz Rodríguez-Labajos.
