International Environmental Law (IEL) & Neo-liberal

Regulation of Environmental Issues

Title

IEL: FRAMEWORK AND REGULATION

ZOBAIDA KHAN
Mandatory Reading

• Tseming Yang, “The Emerging Practice of Global Environmental Law” (2012) 1:1 Transnational
Environmental Law 53
• Sam Adelman, “Rio+20: sustainable injustice in a time of crises” (2013) 4:1 Journal of Human Rights and the
Environment 6
• Jerry V DeMarco, “The Supreme Court of Canada’s Recognition of Fundamental Environmental Values:
What Could be Next in Canadian Environmental Law?” (2007) 17:3 Journal of Environmental Law and
Practice 159 at 159-61, 180-95, 203-04
• New Delhi Declaration of principles of international law relating to sustainable development, International
Law Association, 6 April 2002, UN Doc A/CONF.199/8
• Jason J Czarnezki & Katherine Fiedler, “The Neoliberal Turn in Environmental Regulation” [2016] Utah Law
Review 1

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Sustainable Development (SD)

• SD is not a new concept or principle; it was a part of ancient human heritage.

• SD explored humanity's existential problems and related environmental concerns, such as over-
exploitation of natural resources and depletion of environmental quality.
• SD guided forest management, land use, and promoted alternative economic models during
mid-1800s.
• Sustainability and SD: though not synonymous they are related concepts.“Sustainability is often
thought of as a long-term goal (i.e. a more sustainable world), while sustainable development
refers to the many processes and pathways to achieve it.” (UNESCO)

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Emergence of SD in International Law

• 1972: UN Conference on the Human Environment in Stockholm

• 1987: SD appeared in international law when the World Commission on Environment and Development (WECD)
known as the Brundtland Commission famously promoted it as the vision for “meeting needs of the present generations
without compromising the ability of the future generations to meet their needs.”
• SD has been praised as an “umbrella concept” which is useful for “development and interpretation of international law,”
and determining what are “acceptable conclusions and robust decision-making procedures.” SD includes three different
concepts: environmental protection (planet), economic development (profit), and social justice (people) and covers both
legal and policy principles: inter-generational and intra-generational equity, precaution, common but differentiated
responsibilities, and the polluter pays principle.
• On the other hand, SD has been criticized for being too broad for practical application, and for its inherent bias towards
economic growth.

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Three Pillars of SD

SOURCE: RESEARCHGATE
SD: Important Timelines Shaping IEL

• 1992: The United Nations Conference on Environment and Development held in Rio de Janeiro promoted the first
international attempt to draw up action plans and strategies for moving towards a more sustainable pattern of development.
• 2002: 70th conference of the International Law Association (ILA) adopted the New Delhi Declaration, 2002. ILA adopted the
Seven principles of the Declaration and emphasized on integrating three chapters of international law, i.e. international
environmental law, human rights, and international law of development. The objective was to allocate “due weight to all
these fields of international law and contribute in the development of “a balanced and comprehensive development of
international law on sustainable development.”
• 2012: 20 years later after the Rio Declaration, the ‘Common Vision’ of the Rio+20 summit reaffirmed “the need to achieve
sustainable development by promoting sustained, inclusive and equitable economic growth.” It promoted the concepts of
green economy, ecological modernization, and markets for carbon and ecosystem services. It is proposed that there is no need
for a tradeoff between economic development, social equity, and environmental protection and market-based instruments and
technology can address the environmental crisis.

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SD: Important Timelines

SOURCE: HTTPS://WWW.MDPI.COM/2071-1050/11/24/7158/HTM>
Understanding SD and Green Economy: The Move towards
Market-based, Techno-centric Solution?

SOURCE: RESEARCHGATE
Challenging the Epistemological Basis of SD & Green Economy

• Growing dissatisfactions with the imminent dangers of climate crisis, and with the global economic and trade
policies led critics to focus on the epistemological basis of SD & Green Economy. Critics identify that SD focuses
on human needs, puts prices on natural resources, and does not question the neo-liberal pursuit of development or
the growing inequities and disparities. Against this backdrop, Green Economy promoted during Rio+20 is also
criticized for not attending some fundamental questions:
A. How can present forms of endless production, consumption and distribution be pursued without breaching the
Earth’s biophysical limit and planetary boundaries?
B. How can we reconcile the present concepts of development through industrialization, modernization, and liberal
trade without challenging the existing power structures and resulting inequities in trade and economic system?
C. How is it possible to reconcile that vulnerable and racialized communities would bear the environmental risks,
while their contribution to the present crisis is minimal?

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Challenging the Epistemological Basis of SD and Green
Economy

• These critiques led to the broader questions:

A. Does IEL, through SD and Green Economy concepts promote a universal, technoscientific, euro-centric rationality where
technology and science produce cleaner form of industrialization? Are these new forms of “neo-environmentalism” where
technologies, industrialization, and development are seen as solutions to current crisis?
B. Are these "re-embodiments of the epistemological violence of colonialism” that perpetuated infinite exploitation of nature
through its commodification, “silenced” indigenous and traditional knowledges? Is it possible to design a newer epistemological
shift that would accommodate the “ecology of knowledges” including traditional and indigenous knowledges offering an
alternative vision of living well? Can we learn from the struggles of indigenous people in the Arctic, Latin America, Canada and
elsewhere?
C. How is the transition to environmental sustainability possible without questioning the neo-liberal, capitalist economic growth
framework, economic and environmental injustices, and “righting of historical wrongs?”
D. Should we abandon the concept of economic development for social improvements, for social wellbeing?

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Anthropocentric or eco-centric?

• Consider the deeper queries:

A. Can anthropocentric form of SD, green economy deal with the possibilities of global, climate or social
justice for current or future generations?
B. Can eco-centric focus of IEL help us to understand the deeper connections between economic and
environmental exploitations and question the market-based strategies which only focus on what level of
environmental degradation and social dislocation is acceptable.
C. Is it too late or less pragmatic to focus only on the eco-centric approach? Should the question rather be
formed as where should we start? Starting from ecological sustainability viewpoint might help us to
evaluate our social justice and economic development priorities.

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Neo-liberal Regulatory Instruments

• Despite criticisms, neo-liberal regulatory instruments are now a reality.

• Some regulations focus on purely market-based approaches such as carbon tax, cap and trade system (prescribing
how much emission of a given pollutant is permissible), valuation of eco system services.
• Other types focus on informational instruments such as eco-labelling, advertising to influence consumer
preferences.
• How can we improve the “quality” of these market-based regulatory instruments and “accountability” of the
institutions that are making “green claims to consumers?” For example, for environmental valuation, some
procedural checks such as oversight tools, adequate disclosures, and adaptation possibilities are useful tools to
ensure accuracy of the valuation. For eco-labelling, it has been found that simpler, transparent, uniform eco-labels
issued by centralized government are more effective than labels that are complex and are issued by multiple private
authorities.

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Canadian Perspective

• Status and content of environmental rights in Canada

• Questions on the status focuses on how environmental right(s) are valued in Canada.
• The content issue focuses on what rights are included within this environmental right(s) and how we are
operationalizing those rights.

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Status of Environmental Right(s)

• Two directions in national legal systems:

A. Contingent Right Approach: How environmental violations affect existing statutory or constitutional rights;
B. Independent, Free-standing Right approach,: Whether right to healthy environment is itself a fundamental
shared value and a precondition to enjoyment of other statutory or constitutional rights.
• Independent, free-standing right to healthy environment approach: Content questions

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Status of Environmental Right(s)

• Is environmental protection a basic unwritten constitutional principle? Otherwise how should we ensure
protection of constitutionally enumerated rights.
• Is it a “widely shared” “fundamental” value on which the realization of the Charter rights depend?
• Should we pursue explicit statutory or constitutional right to environment?
• SCC consistently endorsed SD, sustainability, polluter pays principle, precautionary principle and public trust
doctrine.
• The Federal Government introduced in the Senate the bill Strengthening Environmental Protection for a
Healthier Canada Act, which would include right to healthy environment and would modernize the Canadian
Environmental Protection Act, 1999 (CEPA) since 1999. [last updated on Feb 9, 2022 <
https://www.canada.ca/en/environment-climate-change/news/2022/02/strengthening-protections-for-canadians-a
nd-the-environment-from-harmful-chemicals-and-pollutants.html
>]

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Independent Right Approach: Pave the Way to Operationalize
Environmental & Related Rights

• Does existence of independent right improves environmental performance?

• Data shows that independent constitutional or statutory right improves content, interpretation, and
enforcement of laws and environmental management and decision-making. [Source: David R. Boyd, The
Right to a Healthy Environment: Revitalizing Canada’s Constitution, (Vancouver: UBC Press, 2012)]
• A decade ago, UN General Assembly and the Human Rights Council passed resolutions on the human right
to water and sanitation. The resolution encouraged positive national laws and investments in water
infrastructure and by 2017, 1.8 billion people around the world gained access to basic drinking water.

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Moving towards Operationalization of Environmental Right(s)

• SCC has been very active, recognized environmental protection both as a fundamental shared value and as a
contingent right on which enjoyment of other charter rights depend.
• SCC endorsed several key environmental principles: polluter pays principle, precautionary principle,
inter-generational rights, sustainability, SD, and public trust.
• SCC’s decisions endorsed or upheld environmental laws at all levels: federal, provincial and municipal.
• The importance of the decisions lie not just in their impacts upon Canadian EL, in statutory interpretation, in
shaping new legislations and policies, but also in endorsing the “public nature” of these rights.

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Operationalizing Polluter Pays Principle

• Polluter Pays Principle and its use in civil litigation helped in interpreting statutes, how discretion is to be used in
appeal or judicial review.
• It could potentially be used to quantify losses claimed in a tort litigation.
• Examples of operationalization of Polluter Pays Principle:
A. Considering the general guidance of polluter pays principle, local laws could mandate building design standards
that reduce energy and water use, reduce waste generation etc.
B. Statutes could be designed to mandate government decision-makers to integrate environmental concerns in their
decision making process.
C. An environmentally conscious corporation might redirect its waste disposal policies to stop externalization of
cost to society and the environment.

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Operationalizing Precautionary Principle

• Once a threat is identified, lack of scientific certainty does not preclude adoption of precautionary measure.
• Endorsement of precautionary principle have imposed affirmative duty in or constraint on the exercise of
statutory power.
• Precautionary principle have shaped administrative tribunal and governments decisions.

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Operationalizing Intergenerational Equity

• “Each generation has an obligation to the future generations to pass on the natural and cultural resources of the planet in no worse
condition than received and to provide reasonable access to the legacy for the present generation.”
• Intergenerational equity is closely related to public trust and sustainability.
• Recognition of the concepts of intergenerational equity, sustainability, and public trust will make it imperative to consider the rights
of the future generations.
• Operationalization: These concepts not only guided interpretation of statutes, statutory purposes, but also guided structured
decision making; for e.g in determining climate change priorities for the energy sector, decision-makers could focus on sustainable
forms of production and conservation approaches that accommodate considerations for future generations.
• For land and resource management, waste management, water conservation or sustaining bio-diversity, legislative and policy
measures could be designed in a way that incorporate the sustainability values, considerations of the future generations.

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Why focus on operationalization

• The SCC’s decisions impacted not only Canadian EL, guided statutory interpretation and in shaping new
legislations and policies,
• SCC’s recognition helped to endorse “public nature” of these rights and the urgent need to to operationalize
these in dealing with all environmental challenges and utilizing these in all environmental management and
decision-making.
• Only a few decision are decided in courts. Operationalization helps to achieve environmental goals at a
much faster and wider levels.

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