Poverty, Wealth, and Obligation in International Environmental Law
Mark A. Drumbl
Washington and Lee University - School of Law
Tulane Law Review, Vol. 76, No. 4, Winter 2002
Developing nations are demonstrating some success in basing their participation in international environmental governance upon commitments by developed nations to provide financial resources and technology transfer. In recent years, these commitments have achieved textual status within a number of multilateral agreements. Part I of this Article identifies and documents treaty-based examples of this swap of resources in exchange for participation - in particular, in the areas of climate change, biodiversity use/conservation, and ozone protection. This Article suggests that this swap represents a dynamic and emerging relationship between the North and the South that can best be described as a "shared compact." Part II explores the juristic basis of the shared compact. Although treaty-based, the shared compact derives from several important and interdisciplinary principles of international environmental and economic law, moral philosophy, and international relations theory. In Part III this Article argues that, among these diverse sources, the shared compact largely is the result of "selfish justice," namely the developed world seeking to avoid the environmental externalities of the developing nations' future industrialization and the developing world seeking to minimize the costs of environmental protection, although both groups elected to proceed through broad multilateral negotiations, thereby ensuring that smaller developing nations not be left behind or excluded through what would likely have been more cost-effective bilateral bargaining among the major players. The primus inter pares nature of the selfish justice motivation explains why the environmental issue-areas in which the shared compact has arisen (and would arise in the future) tend to be ones in which common concerns of humanity are threatened or in which externalities are imposed on the developed world, and not issue-areas with local impact upon developing nations alone, regardless of the severity of that impact. Part IV raises important questions triggered by the emergence of the shared compact. These include: (a) juridical questions related to the legal status of the transfer commitments; (b) practical questions related to their ability to enhance compliance with and implementation of the international environmental agreements in which they are found; and (c) political questions related to the plausibility of maintaining the political will in the North, particularly in the United States, to remain within a shared compact given increased awareness of the costs thereof. In the end, the shared compact may extract international environmental governance from certain impasses. But it may replace these with new, and potentially insurmountable, ones.
Number of Pages in PDF File: 137Accepted Paper Series
Date posted: September 12, 2001
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