Non-state actors and the emerging climate change law regime.

Position::International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law - Discussion

This panel was convened at 10:45 a.m., Friday, March 26, 2010, by its moderator, Jaye Ellis of McGill University, who introduced the panelists: Elizabeth Burleson of the University of South Dakota School of Law; Naomi Roht-Arriaza of California, Hastings, College of Law; and William L. Thomas of Skadden, Arps, Slate, Meagher and Flom LLP Law. *

* Naomi Roht-Arriaza and William L. Thomas did not submit remarks for the Proceedings.


By Elizabeth Burleson

Most creative solutions that integrate local needs with local and global environmental concerns come from frontline and fenceline communities in collaboration and dialogue with other actors. Procedural barriers to participation include language generally, and literacy in particular. Internal politics and hierarchies within communities also create obstacles to involvement, particularly for indigenous people. The environmental movement has grown substantially in the last two decades, (1) raising awareness about the need for genuine involvement rather than perfunctory notification of projects that detrimentally impact public health and ecological viability. Cultural and social capital barriers to participation and equity include access to education and the means by which to gain the requisite "professionalism" to take part in the political process. Historical injustice compounds the ability of extremely understaffed small NGOs directly representing people in frontline communities.

What works and why is it important? NGOs have increased their capacity to engage with nation-states in high-stakes international negotiations. (2) It is crucial that NGOs remain able to interact with individual stakeholders who benefit from such advocacy efforts. Listening to people takes time but can result in gathering locally specific knowledge, often traditional, but also new knowledge based on observations of changing patterns. No one should try to reinvent the wheel, but decisionmakers do not always have the insight or resources with which to be inclusive in a way that embraces cultural knowledge. Policies are all too often made at centralized levels that preclude the possibility of particular community solutions.

The environmentalism of the poor is an environmentalism of livelihood concerned not only with economic security in the marketplace, but also with non-market access to environmental resources and services. Youth and women have increasingly been recognized as stakeholders with community knowledge and sustainable policy recommendations.

When poor people want to take part in environmental movements, they tend to face barriers to effective participation. Environmental activists and academics have drawn from three broad categories of justice: distributional justice, procedural justice, and entitlements. (3) Distributional justice refers to the distribution of harms and benefits over a population. (4) For this standard to be met, the distribution of harms should not be more prevalent for any identifiable subgroup than another. (5) If egalitarian (equality-based) standards are used to assess distributional justice, then each group should...

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