Sustainable justice

A scholar explores the tangled legal relationship between environmentalism and global trade

By Nathan Johnson

In the prologue to Lawrence M. Friedman's classic study, A History of American Law (first published in 1973), the author advances the theory that "law moves with its times and is eternally new." That Friedman's monumental work contains just one index entry for 'environmental law' - in the book's epilogue no less - is testimony not to the author's lack of thoroughness, but instead some pretty hard evidence of just how much new legal terrain has emerged in recent decades. And perhaps no field occupies as much of this altered legal landscape as environmental law.

Friedman, still teaching at California's Stanford University, was prescient enough to observe three-and-a-half decades ago that man's social problems were growing more and more closely linked to emerging problems with man's physical environment, and pointed to economic growth as one of the key factors. In decrying disturbing patterns of industrial recklessness, he wrote scathingly: "Resources [are] not infinite. Big business [is] poisoning the rivers and darkening the air; lumber companies [are] chopping down irreplaceable trees; cities [are] pouring tons of muck in to lakes and oceans; highway engineers [are] driving concrete paths through pieces of the American heart and heritage. This debauchery [can] be justified only by blind faith in the invisible hand of the market, and in 'progress,' and in the virtue and sense of public institutions."

What Friedman describes in this passage is national in scope and relatively confined to violence done to the earth's surface; and the ecological movement, though beginning to stir, has yet to burst on the public - and legal - imagination. Today, climate change is a global phenomenon, and it is widely believed that the most devastating environmental impacts are or will later be the result of anthropogenic harm done to the earth's atmosphere. Despite a lack of environmental education in many parts of the world, and despite pockets of resistance to scientific claims, environmentalism is no longer a fringe movement but a cause to which many millions of people are devoting much of their energy, if not their lives.

Meanwhile, the expansion and complexity of environmental concerns has created several new legal dimensions. Christina Voigt, an Oslo-based lawyer and legal researcher, is the author of Sustainable Development as a Principle of Integration in International Law: Resolving Potential Conflicts between WTO Law and Climate Change Mitigation Measures. While Voigt's book is necessarily well researched and grounded in legal fact, its real value is interpretive and anticipatory in nature.

Overarching objectives

Drawing from three signal events - the United Nations Framework Convention on Climate Change (1992), the Kyoto Protocol (1997) and the Marrakesh Agreement Establishing the World Trade Organization (1994) - Voigt assesses the intertwined legal conjunctures of climate change mitigation efforts and economic globalisation. To provide a firm footing for what follows, she cites the World Commission on Environment and Development (WCED): "Ecology and economy are becoming ever more interwoven - locally, regionally, nationally and globally - into a seamless net of causes and effects."

"If all the challenges of modern society, which are separately addressed by various regimes, are to be met," Voigt writes in the book's general introduction, "some kind of overarching objective needs to be in place that sketches out a global and long-term picture of our world and helps to coordinate the fragmented attempts." [Emphasis is in the original.]

What Voigt identifies as this overarching objective is the concept of 'sustainable development', defined by the WCED's seminal 1987 report, Our Common Future as "development that meets the needs of the present without compromising future generations to meet their own needs." She concludes in her book's introduction: "Despite the clarity and simplicity of this mandate, the development of an international legal response to tackle climate change is a difficult task. Yet it is a study par excellence of the attempt of the international community to understand and implement sustainable development."

While any in-depth discussion of this book is beyond the scope and purpose of this brief summary, Voigt breaks her work into three main sections, which offers some clarity of intention: 1) Sustainable Development in International Law; 2) Conflicts between Climate Measures and WTO Law; 3) and, Sustainable Development as a Principle of Integration of Climate and Trade Law.

The expansion of liberalised trade since the collapse of the Soviet Union has no doubt led to the WTO becoming, in Voigt's words, "one of the most interesting, albeit controversial, intergovernmental organizations of our time. The WTO provides a forum for continued negotiations on the promotion and liberalization of free grade in goods and services. It also oversees and administers the complex matrix of international treaty law governing the global trading system, and it operates the busiest and perhaps most important international dispute settlement systems."

Ultimately, what Voigt sets out to do - and it is an admirable effort - is to explore the "potential for conflict between the norms of the international climate and the international trade regimes." She then proceeds to argue that "sustainable development actually provides a legal tool for dealing with these normative conflicts."

As Bhopal, Chernobyl, Exxon Valdez - and now, the Deep Horizon catastrophe in the Gulf of Mexico - make tragically clear, the environmental, animal and human costs to be paid for avarice and recklessness are enormous. We must have legal remedies in place, not only to redress environmental wrongs, but to prevent them from happening in the first place. Christina Voigt's legal scholarship and book are important contributions in this regard.