analysisBy Usha Natarajan
How does international law contribute to and tackle climate change?
I - DEFINING INTERNATIONAL ENVIRONMENTAL LAW
Environmental change and resource scarcity have emerged as existential threats in recent decades. As many environmental problems such as climate change, loss of biodiversity and desertification are global in nature and require cooperation across state borders, international lawyers have attempted to proffer solutions, largely since the early 1970s.
The birth and evolution of the specialised field of international environmental law (IEL) is conventionally narrated as progressing through a series of conferences, beginning with the 1972 Stockholm Conference on the Human Environment through to the 1992 Rio Earth Summit and the 2002 Johannesburg Conference, leading up the most recent Rio +20 Conference on Sustainable Development in June 2012. The embryonic field of IEL has gradually constituted itself through these conferences and many others, as states, non-state actors, scholars, experts, and other interested parties gradually build up a body of treaties, legal principles and concepts to guide international action on environmental issues.
One such concept is that of sustainable development, which has been canonical for IEL since the 1992 Rio Summit when the international community expressed a strong consensus in its favour. Sustainable development calls for development that "meets the needs of the present without compromising the ability of future generations to meet their own needs". It places development policy-making within the context of the absorptive capacity of natural ecosystems and recognises the limits of such systems. It places emphasis on not only inter-generational equity but also intra-generational equity by basing itself on three interdependent pillars: economic, social and environmental sustainability.
The recent Rio+20 Conference provided an opportunity to look back and assess IEL's progress and determine to what extent the world has made the paradigm shift from conventional to sustainable development. Global consciousness and concern for environmental issues has grown in recent decades, as has recognition that economic, social and environmental sustainability are linked. However, many of the problems that IEL aimed to address, such as climate change, biodiversity loss, and desertification, have worsened. Why has IEL failed? Is international law a useful avenue for solving environmental problems? And if so, how?
II - RELEVANCE FOR AFRICA
Why should African peoples care about these questions? Less developed regions of the world have long been either sceptical or ambivalent about IEL and its usefulness, perceiving IEL as an attempt to ameliorate Western development mistakes at the expense of non-Western development.
Since independence, postcolonial states have sought development in the Western sense, believing it to be the only path out of mass poverty and humiliating financial dependency. At the same time, Western states gradually realised that their understanding of development was causing grave global environmental harm and was unsustainable. Thus, the two dominant strains of argument in IEL have been affluent Western environmentalists calling for global environmental protection, and advocates from poorer regions prioritising poverty eradication and insisting that rich regions should take responsibility for the environmental problems they caused.
i) Common but differentiated responsibilities
IEL concepts such as sustainable development and the principle of common but differentiated responsibilities for the global environment attempt to address both concerns by insisting that, firstly, environmental and developmental concerns are inextricably intertwined; second, states that cause the most environmental harm should bear the primary responsibility for solutions; and third, richer states should take the lead and bear a greater burden because of their greater economic and technological capacity.
While these concepts clearly articulate what is needed, more developed states have either not formulated, or not adhered to, a concomitant hierarchy of norms and actions. Thus IEL has failed to eradicate the sense of injustice that poorer regions feel and, on a diversity of issues from species conservation to climate change, IEL is characterised by a deepening divide between the poor and the rich.
ii) Disproportionate suffering
Indeed it is deeply unfair that Africa, which has contributed least to global environmental problems, should have to concern itself with environmental protection at a time when many struggle with accessing the basics of survival such as drinkable water, food and shelter. However, in recent years, international law advocates for the poor have increasingly re-engaged with environmental issues because, just as the rich receive a disproportionate benefit from exploiting nature, the poor bear a disproportionate burden of scarcity, pollution and environmental crises such as climate change. Globally, dominant development patterns coupled with population growth have led to increased resource consumption and pollution and waste, causing both resource scarcity and ecological crises.
As the last remaining pockets of many natural resources exist in poorer parts of the world, and as poorer regions are more vulnerable to ecological crises, IEL is an increasingly strategic site from which vulnerable peoples, and the movements, scholars, and states that represent them, can contest, negotiate, and resist international economic and development paradigms. Today, grassroots social movements are increasingly harnessing environmental issues as an opportune means of challenging fundamental assumptions that underpin capitalism and development.
The overriding sustainable development challenge in Africa is poverty eradication, and African states have looked to economic growth for the solution. In the past decade, six African countries were among the world's ten fastest growing economies. The average growth rate was about the same for Africa and Asia and there is a strong likelihood that Africa will surpass Asia's growth rate in the next decade. Yet economic growth in Africa has generated significantly less poverty reduction and social benefits than in other developing regions. It has not created enough jobs and inequality has increased. Africa is the only region in the world where poverty has increased both in absolute and relative terms in the last ten years.
iii) Continued cycle of domination
Just as in the past when Africa's rich and diverse natural resources attracted colonial powers, today primary products continue to dominate Africa's export sectors. The value added locally remains minimal compared to the financial gains accruing outside the continent. Some resources such as oil and diamonds have also contributed to conflict. While Africa is well-endowed with fossil fuels, hydropower, uranium, biomass and other renewable energy resources, many Africans do not have access to reliable and affordable energy.
Hunger and malnutrition remain pervasive and the spectre of famine continues to haunt millions on a continent with ample agricultural endowments. This is the result of various factors including the global increase of food prices, developed countries' agricultural subsidies benefiting their own rich producers, and many years of structural adjustment programmes encouraging African governments to repay ballooning debts by diverting resources from food production to cash crop exports.
Globally, increasing climate variability, rising costs of fossil fuels, and concerns for future energy and food supplies, has spurred foreign investors and speculators to buy fertile land in Africa. And while foreign acquisition of African land is increasing, transparency about the acquisitions is decreasing. Control over land is crucial for smallholder farmers but they remain highly vulnerable to dispossession and exploitation. This applies particularly to women, who constitute a majority of the agricultural workforce in the region, producing about 80% of the region's food, yet owning less than 1% of the land on which they work. They, along with children, are the first to suffer the effects of economic downturn, drought, famine and violent conflict.
Africa's economic growth pattern does not bode well for either poverty reduction or environmental protection. The latter has grave consequences for the region's poor who depend directly on the livelihood support of functioning ecosystems. Environmental degradation causes poverty, hunger, gender inequality, and health problems. The poor also have less capacity to adapt and cope with the increasing onset of ecological crises. Notwithstanding its low greenhouse gas emissions, Africa will be most affected by climate change mainly due to low adaptive capacity in the face of increasing extreme events such as floods and droughts.
Persistent loss of biodiversity is also a major problem, caused by expanding agriculture, deforestation, climate change, and desertification. Drought and desertification affect 65% of the population and highly variable rainfall results in uneven distribution of water resources. Thus, for a combination of economic, social and environmental reasons, African peoples have strong incentives to participate in and shape international cooperation on environmental issues.
III - TOWARDS PRODUCTIVE DISCOURSE
Can international law overcome past failures and address the urgent needs of those on the frontline of environmental crises? The primary barrier to sustainable development is a dominant development paradigm dependent on an infinite increase in economic growth, consumption, and production. While of Western origin, this paradigm now has almost universal influence. Western understandings of development come from value systems with deep cultural and historical roots and are difficult to change. Transformation requires, first, a better understanding of the problem and, second, viable alternatives.
i) International law as the problem
On the first point, while international lawyers have focused on disciplinary solutions to environmental challenges, less attention is devoted to uncovering the role of international law in creating unsustainable patterns of behaviour. Environmental issues have been relegated to the specialised field of IEL. However, harmful assumptions about the environment lie at the heart of international law concepts such as sovereignty, development, property and human rights.
For instance, sovereignty assumes certain types of control and productive use of land - a requirement that has had significant consequences for the range of decisions in which postcolonial states engage. International law and its institutions have also played an important part in universalising and normalising an idea of development and political economy wedded to the infinite exploitation of natural resources. Conceptions of property in international law, such as the public-private distinction and the notion of the commons, reflect a particular understanding of nature where selective aspects are commodified. The anthropocentricity of international law, most easily identifiable in the powerful discourse of human rights, also plays a part in limiting disciplinary responses to ecological crises. Unpacking some of these assumptions may help us think our way out of destructive development patterns.
ii) Local solutions
On the second point, the hegemonic nature of the dominant paradigm makes it difficult to imagine alternatives. For inspiration, communities often turn to scientific innovation as well as cultural and historic knowledge, creating hybrid and innovative local sustainable solutions. Indigenous knowledge as yet unobliterated by globalisation has helped some African communities survive food, nutrition, healthcare and climatic challenges with little or no support from the outside world.
Perhaps the only bright side to underdevelopment is that Africa is less wedded to the dominant development paradigm and may find it easier to imagine and adopt alternative paths. IEL has focused on top-down normative guidelines for states but perhaps it should instead be more receptive to the potential that local sustainable practices have for tackling global problems.
The first 40 years of IEL were predominantly shaped by the Western experience of environmentalism. Alongside the re-emergence of the economic and political power of Asia, Africa and Latin America, there is an opportunity for alternative cultures, understandings, and voices to emerge to help creatively articulate what sustainable development is, and provide choices other than the harmful development trajectories of the past.
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QUESTIONS TO CONSIDER:
1. How did the field of international environmental law come to exist?
2. How does international environmental law illustrate the distribution of power within the global political economy?
3. How are environmental degradation and poverty connected?
4. How do environmental problems require both global and local discourses?
UNEP, Agenda 21. Available at: http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=52
Brundtland Commission, Our Common Future, Oxford: Oxford University Press (report by the World Commission on Environment and Development) (1987) http://www.un-documents.net/wced-ocf.htm ; http://worldinbalance.net/intagreements/1987-brundtland.php.
IUCN/UNEP/WWF, Caring for the earth: a strategy for sustainable living (1991) http://coombs.anu.edu.au/~vern/caring/caring.html
ODI Sustainable Livelihoods Working Paper Series: http://www.odi.org.uk/publications/susliv.html
Jones, S. and G. Carswell (eds), The Earthscan reader in environment, development and rural livelihoods. London: Earthscan. (2004)
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Conca, K., 'Rethinking authority, territory, and knowledge: Transnational socio-ecological controversies and global environmental governance'. In Jacob Park, Ken Conca and Matthias Finger (eds) The crisis of global environmental governance: Towards a new political economy of sustainability. London and New York: Routledge, (2007) pp.193-207
Mol, A.P.J. & G. Spaargaren, Ecological modernization and the environmental state. In: A.P.J. Mol and F.H. Buttel (eds.) The environmental state under pressure. Amsterdam etc.: JAI. (2002) pp. 33-52
Martinez-Alier, J. The Environmentalism of the Poor, Cheltenham: Edward Elgar, (2002)
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Woodhouse, P. 'Environmental Degradation and Sustainability' in T Allen and A Thomas (eds.) Poverty and Development into the 21st Century eds , Oxford: Oxford University Press, (2000).
Woodhouse, 'Social and Environmental Change in Sub-Saharan Africa' in H. Bernstein et al, (eds.) Rural Livelihoods: Crises and Responses, Oxford: Oxford University Press, (1992)
Hansen, S. 'Macroeconomic policies and sustainable development in the Third World,' Journal of International Development Vol.2, No. 4, (1990)
Sachs, J., Common wealth: Economics for a crowded planet, London: Penguin Books (2008)
 For a larger overview of important documents connected to international environmental law see http://www.asil.org/erg/?page=ienvl. For a more comprehensive historical timeline, see http://www.iisd.org/pdf/2006/sd_timeline_2006.pdf
 In 1987, the United Nations released the Brundtland Report, Our Common Future, which included what is now the most widely recognized definition of sustainable development.
 B Metz et al (eds), Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (2007); United Nations Convention on Biodiversity Secretariat, Second Global Biodiversity Outlook (2006); United Nations Convention on Combating Desertification Secretariat, Land and Soil in the Context of a Green Economy for Sustainable Development, Food Security and Poverty Eradication (2011).
 See further U. Natarajan, 'TWAIL and the Environment: The State of Nature, The Nature of the State and the Arab Spring' (forthcoming 2012 Oregon Review of International Law).
 African Ministerial Statement to the World Summit on Sustainable Development (2002).
 From 2001-11: Angola, 11.1 per cent; Nigeria, 8.9 per cent; Ethiopia, 8.4 per cent; Chad, 7.9 per cent; Mozambique, 7.9 per cent; and Rwanda, 7.6 per cent. IMF forecasts indicate that seven African countries are likely to be among the top ten over the next half decade (2011-5): Ethiopia, 8.1 per cent; Mozambique, 7.7 per cent; Tanzania, 7.2 per cent; Republic of Congo, 7.0 per cent; Ghana, 7.0 per cent; Zambia, 6.9 per cent; and Nigeria, 6.8 per cent. Since 2000, trade between Africa and the rest of the world has increased by two hundred per cent. While resource rich African countries have grown rapidly due to the extractive sector boom, so have net food and energy importing countries such as Ethiopia, Rwanda, and Uganda. Thus, sources of growth are diversifying and African economies are becoming larger and more resilient. See UNECA, Rio +20 UNCSD: Progress towards Sustainable Development in Africa Summary Report (2012) 12.
 Ibid. World Bank figures suggest that in eight of the last ten years growth in Sub-Saharan Africa has been faster than that of East Asia, not including Japan.
 Ibid 14-15.
 Ibid. UNCTAD projections show that the region's per capita income will grow only 2.7 per cent in 2011 and 2.8 per cent in 2012, both of which are below the 3 per cent threshold considered the minimum to make a dent in poverty. The UNDP's new inequality-adjusted Human Development Index shows that the human development ratings of African countries have fallen substantially, if adjusted for inequality in wealth distribution. For example, the adjustment reduces ratings for countries such as Central African Republic, Mozambique and Namibia by as much as 40%.
 UNECA, Sustainable Development Report on Africa I (2005) 1. IFAD, Rural Poverty Report (2011): Sub-Saharan Africa is home to a third of the world's poor, a number that has risen from 268 million to 306 million over the past decade. The UNDP Multi-dimensional Poverty Index puts the number of poor in the region as high as 458 million.
 Ibid v, ix.
 Ibid ix.
 Ibid xi. Of the 1.4 billion people without access to electricity worldwide, 40 per cent are in Africa, and almost entirely in Sub-Saharan Africa: UNECA, Rio +20 UNCSD: New and Emerging Challenges in Africa Summary Report (2012) 9.
 A famine occurred in Somalia in 2011 and the Sahel is at risk in 2012: UNDP, Africa Human Development Report: Towards a Food Secure Future (2012) iv.
 International Land Coalition et al, Dealing with Disclosure: Improving Transparency in Decision-Making in Large Scale Land Acquisitions, Allocations and Investments (2012).
 UNECA, Progress towards Sustainable Development (2012) 16.
 UNECA, Sustainable Development Report on Africa: Five-Year Review of the Implementation of WSSD Outcomes in Africa (2008).
 UNECA, Emerging Challenges (2012) 5.
 Ibid 2.
 Ibid 3, 8: More than 30 per cent of global dry lands are located in North Africa, the Sahel and the southern part of Africa. They cover almost two billion hectares in 25 countries. Over 400 million people live in the dry lands, the majority of them the rural poor with an annual population growth rate of 3 per cent. The dry land is under threat from deforestation, soil erosion, nutrient mining, recurrent drought and climate change, potentially resulting in land degradation and desertification, and aggravated poverty.
 UNECA, Progress towards Sustainable Development (2012) 21-22.
 See further K Khoday & U Natarajan, 'Fairness and International Environmental Law from Below: Social Movements and Legal Transformation in India' (2012) 25 Leiden Journal of International Law 415.
Usha Natarajan is an assistant professor at the American University in Cairo's Department of Law and the Centre for Migration and Refugee Studies. She has a multidisciplinary background, with a PhD in international law from the Australian National University, a MA in international law from the United Nations University of Peace and an LLB in Law and a BA in Art History from Monash University. She has taught international law at the Australian National University, and worked with various international organisations including UNDP, UNESCO and the World Bank.