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Addressing Inequality to Foster Legitimacy and Effectiveness of Environmental Regimes

Philippe Cullet
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The 2022 Declaration must integrate concerns related to inequality between people and between states. Enduring inequalities between states call for strengthening differential treatment and in consonance with present-day realities. Fast increasing inequalities between people call for making this a core subject of interest of international environmental law. Rights must be at the center of this new focus and include not just the long-debated human right to the environment but also nature rights.

International environmental law has given attention to the special situation of developing countries since the Stockholm Declaration, which emphasized, for instance, that under-development caused environmental deficiencies and that this required ‘the transfer of substantial quantities of financial and technological assistance to developing countries. The Rio Declaration restated that special priority should be given to developing countries.

Mainstreaming Poverty Eradication in International Environmental Law

Progressively, poverty became a structuring element of environmental law in the context of the introduction of sustainable development as the umbrella notion informing environmental policy at the international level. This was made explicit from 1987 onwards with the Brundtland report emphasizing ‘the essential needs of the world’s poor, to which overriding priority should be given.

Over time, the eradication of absolute poverty became a central objective of international environmental law and development policy. The Rio Declaration emphasized, for instance, that ‘[a]ll States and all people shall cooperate in the essential task of eradicating poverty as an indispensable requirement for sustainable development’. Subsequently, absolute poverty eradication became the first goal of the Millennium Development Goals and later on the Sustainable Development Goals (SDGs).

Addressing inter-state inequality through Differential Treatment

In terms of legal developments, the principle that reflects most directly the engagement of international environmental law with the special situation of developing countries is the principle of common but differentiated responsibilities. This principle reflects ‘differential treatment’, or the adaptation of the rules of international law to take into account inequality between countries. This has taken different forms, including ‘contextual’ norms, which reflect the fact that not all countries have the same capacity to comply with universal norms. This also includes norms that are ‘differential’, where developed and developing countries take on different commitments.

The principle of common but differentiated responsibilities is one of the main principles of international environmental law, as reflected in the fact that it was the only principle of the Rio Declaration specifically restated at Rio+20 in the Future we Want and in the 2030 Agenda for Sustainable Development. In legal instruments, differential treatment measures can be found in virtually every environmental treaty adopted since the mid-1980s. Put differently, international environmental law has been structured around a global South-North axis for decades.

Yet, despite significant enduring inter-state inequality, there has been a progressive push to move away from differentiation. This is based in part on the impressive economic performance of some developing countries over the past three decades. One of the results of this attempt to rethink the bases for environmental law can be seen in the Paris Agreement that abandoned negotiated differentiated commitments in favor of individually determined commitments, known as nationally determined contributions. Yet, even the Paris Agreement reflects the fact that inter-state inequality cannot be wished away, and a number of differential measures are also included, such as with regard to funding.

Despite significant enduring inter-state inequality, there has been a progressive push to move away from differentiation.

As we move towards 2022 following two years where the world has lived under the shadow of the COVID-19 pandemic, inter-state inequality is today an even more pressing concern given that the pandemic has reinforced existing inequalities. The gulf that separates countries with ‘very high human development’ and those with ‘low human development’ remains immense and may in fact worsen in the aftermath of the pandemic. The need for differentiation is thus as strong as ever but needs to be better targeted and structured around the environmental issues being addressed. This can be addressed in part by structuring differentiation around smaller groups of countries, such as least developed countries and small island developing states, and by focusing on elements, such as vulnerability already recognized in the climate change regime.

Integrating Inequality between people in International Environmental law

Inequality between people is yet to be tackled effectively in international environmental law. For years, this remained a largely invisible concern in sustainable development debates. This changed with the inclusion of a specific goal devoted to inequality in the SDGs. Goal 10 has the merit of putting side by side inequality between people and between countries, thereby confirming that effectively addressing inequality requires addressing both concurrently. 

Concerns regarding inequality between people have grown rapidly over the past couple of decades. The pandemic and associated lockdowns have made things much worse, as confirmed by the World Bank stating already in 2020 that ‘[p]overty reduction has suffered its worst setback in decades’. To date, international environmental law has remained framed mostly in the form of traditional public international law. Exceptions to this rule include the Aarhus and Escazú conventions. Beyond this, it has proved difficult for the international community to link more clearly human rights and environmental law, even though a majority of UN member states today recognize the right to a clean environment, as well the African and American regional human rights regimes. Goal 10 of the SDGs is the most immediate pointer that the UN has given itself that it is not possible anymore to frame environmental law at the international level without grappling directly with questions of inequality between people. 

The 2022 Declaration needs to address inequality between people directly.

The 2022 Declaration needs to address inequality between people directly. Firstly, persisting and increasing inequality is increasingly affecting the legitimacy of international environmental regimes. Secondly, inequality between people is counter-productive in terms of the effectiveness of the law. The latest Human Development Report makes a similar point when it states that ‘[c]ollective action on anything from the Covid-19 pandemic to climate change becomes more difficult against a backdrop of social fragmentation’.

Towards an Ambitious Declaration

In 2012, Rio+20 essentially only restated the principles enshrined in the Rio Declaration of 1992. In 2022, the Declaration must display much more ambition. It needs to reflect and address the increasingly worrying levels of inequality across the world. This is necessary to ensure the continued legitimacy of international environmental law in a decade that will be marked by the pandemic that threatens to unravel the realization of SDGs by 2030. Addressing inequality much more directly and effectively is also necessary to foster the effectiveness of environmental regimes. This includes the long-standing need for more effective technology transfer and more ambitious funding. 

In practice, addressing inequality between states requires, as a starting point, giving a new lease of life to differential treatment. The attempt to move away from negotiated differentiation has led to unsuitable results from an environmental perspective, as witnessed in the case of the nationally determined contributions under the Paris Agreement. This has been affirmed by the UN General Assembly, which has noted ‘with concern that the nationally determined contributions presented thus far by the parties to the Paris Agreement are not sufficient’. On this basis, the international community needs to embrace existing inequalities as a way to move forward and strengthen environmental regimes. 

With regard to inequality between people, 2022 must be the year when international environmental law starts reflecting in earnest the fact that it is not possible to artificially build legal regimes based only around states without taking into account the reality of life within sovereign entities. In this context, it is essential to acknowledge the link between the rights of individuals and groups, and the legitimacy and effectiveness of international environmental regimes. One of the entry points for this is human rights but more generally it is about rights and includes nature rights. Debates around Harmony with Nature confirm that policymakers should use this as a starting point for launching new debates around rights that reflect both people’s and nature’s needs, as already enshrined in different forms in some countries. The UN Secretary General’s recent report on this topic appropriately notes that despite a growing acknowledgment of the link between human rights and the environment, environmental law has ‘largely failed to reduce pollution and prevent species and habitat loss on which human rights depend’. In this context, ‘[r]ecognizing the Rights of Nature in law fills that void and proves complementary to human rights’. The 2022 Declaration must integrate these concerns that will give renewed strength to international environmental law.