International Justice and the Global Environment.

• Author: Yokota, Yozo

A body of international law requiring sovereign states to regulate behavior that affects the environment has not yet been well-developed. In light of this, some states claim that they have complete and independent authority over deciding if and how they should implement environmental policies. The national and international impact of environmental policies dictates that justice concerns play an integral role in this policymaking process. Even so, governments' responses to environmental problems may differ depending on their respective interpretations of justice. Because justice can be defined in many ways, states must agree upon an exact meaning in order to provide consensual solutions to environmental questions.

The conundrum of how to respond effectively to global environmental problems clearly demonstrates the need for change in the structure and procedures of international law. Many scholars today write of this "changing structure of international law,"(1) yet few have explained why and how the structure is transforming or the implications of these changes. In an attempt to articulate more comprehensively the evolving system of international law, I will explore what international law should consider just recourse in addressing global environmental problems.

The problem of global environmental justice reflects the new era the world has entered, moving beyond the constant state-driven conflict and struggle of the Cold War that marked the first 45 years after the Second World War. We are now entering a new global community organized in multiple ways: in the form of states, enterprises, trade unions, academic associations and NGOs. The members of these groups are all trying to work together to cope with common threats to the existence of humankind, such as natural disasters, infectious diseases like AIDS, the spread of terrorism, population explosion and, above all, global environmental degradation. The present juncture in history is thus a particularly opportune moment to pursue global environmental justice.

THE GLOBAL ENVIRONMENT AS A CONCERN OF INTERNATIONAL JUSTICE

What does it mean to seek justice in the realm of the global environment? One may argue that there are three reasons to consider problems arising from environmental change a matter of justice. First, to be fair--that is, to be just--to future generations, we must consider the effect of preventable environmental change on human beings who will follow us here on Earth. This intergenerational form of justice requires that we do our utmost to ensure that, for instance, our children and grandchildren do not suffer from high rates of skin cancer as a result of unchecked depletion of the ozone layer. Second, environmental justice means that we should respect the other living creatures who share the world with us. It is therefore unjust for us to callously allow sea otters to drown in oil spills, or to allow entire species to disappear at the hands of industrialization. The third component of environmental justice concerns the need to provide just recourse and compensation to people victimized by environmental degradation and to develop a legal framework that ensures this provision.

Yet the phrase "international environmental justice" begs several important, if difficult, questions, such as: What is justice? What is international justice? And what makes a given environmental change a problem whose resolution is a matter of justice? Such definitional complexities must be adequately addressed before moving on to an analysis of how international cooperation may be structured to achieve environmental justice. I identify five of these complexities.

First, the term "justice" can mean many things. To some, it may mean "the principle or ideal of moral rightness" or "equity," while to others it may mean "conformity to moral rightness in conduct or attitude" or "righteousness." Some assume that justice means "fair treatment or punishment in accordance with honor, norms and the law" or "fairness," while for others it may mean "impartiality," "reasonableness," "legality" or "appropriateness"--all of which connote different underlying conceptions.(2)

The polysemic nature of justice complicates the discourse on global environmental problems. It may be considered, for instance, a just policy to reduce substantially the emissions of greenhouse gases (GHGs) such as carbon dioxide. In this case, justice, in the sense of righteousness, may dictate that all states take effective measures to reduce their GHG emissions immediately by 10 percent from a 1990 base level. Some may argue, on the other hand, that such a policy is unjust given the realities of global inequality, requiring all states to bear the burden of reducing GHG emissions equally irrespective of their production and consumption patterns. They would assert that industrial and post-industrial countries, the chief GHG emitters, should have a greater responsibility in reducing emissions. In this case, justice, in the sense of fairness, might require an uneven reduction quota between developed and developing countries.

The second problem regarding justice lies in the definition of international justice. Traditionally, "international" has meant interstate, and thus international justice has meant justice between sovereign states. It is therefore no surprise that the main function of the International Court of Justice, for instance, is to use international law to resolve only interstate disputes, not disputes involving nonstate actors.(3)

The United Nations Charter refers to justice without clearly defining it.(4) It speaks of the determination of the peoples of the United Nations "to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained."(5) It also stipulates that one purpose of the United Nations is "to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace."(6) Furthermore, the charter provides that "[a]ll members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered."(7) It is not clear whether justice means anything more than justice between states.

With regards to the global environment, however, states are not the only entities that perpetrate, or are victimized by, environmental degradation. Other actors--citizens, consumers, enterprises, local governments and nongovernmental organizations (NGOs)--also cause or are affected by environmental degradation. Thus, in the context of the global environment, we must inevitably seek justice not only among states but also among nonstate actors. This situation complicates the matter because the traditional international legal system is not well-equipped to address the issue of justice as it relates to nonstate actors.

Yet another concern relates to the multiplicity of issues raised by each specific environmental policy question, including water, land and air pollution, the depletion of natural resources, the preservation of endangered species and the protection of a natural heritage. Each complicated issue possesses its own particular characteristics and implications for the actors involved, whose interests and responsibilities may vary, while different conceptions of justice sometimes conflict with one another. For instance, certain indigenous populations depend on hunting that threatens endangered animals. The continuation of these traditional ways of life may very well affect these people's survival, while extinction of a species represents an important environmental threat. Hence, finding a just solution to this sort of problem is not a simple task because justice for the environment does not easily translate into justice for the people, and vice versa.

The fourth problem concerns the scientific uncertainty surrounding many global environmental issues. Scientists do not agree, for example, on the question of climate change, or the precise causal relationship between increases in GHG emissions and the average rise in world temperature. Nor do they agree on the impact of climate change--such as a rise in sea level or changes in precipitation patterns resulting in an increased frequency of winter cyclones--on human life.(8) Equally uncertain is the direct causal effect of chlorofluorocarbon (CFC) gases on the enlargement...