1. Introduction
Thinking about
the third generation of international environmental law means trying to
forecast the future. Many assume that this is an impossible task and that
the rule “no prophecy, especially for the future” is to be strictly observed[1]. But
it is an activity which many groups love: economists, political scientists,
and social researchers on the one hand; environmentalists and environmental
lawyers, on the other. However there is a difference between the two groups. For
the expert of the first group, the future is not necessarily worse than
the present: it could even be better. On the contrary, environmentalists
and environmental lawyers constantly imagine the future ranging from bad
to very bad.
This attitude is
not recent. It’s deeply rooted in environmental thinking. Starting
with Malthus in 1798 with his prediction that starvation in Great Britain
was imminent, there has been an endless chain of predictions of catastrophe
concerning irreversible environmental damage and unavoidable scarcity
of food, minerals, water and other natural resources.
A few examples
are sufficient. In1865 Stanley Jevons predicted the end of coal in Great
Britain in a few years. In 1914, the United States Bureau of Mines
reported that oil reserves would last no more than ten years. According
to official reports of the US Department of Interior published in 1939–and
again in 1951–oil reserves would last slightly more than one decade.
In1972 a world famous book, The Limits of Growth, predicted a coming
shortage of world reserves of oil, natural gas, silver, tin, uranium,
aluminum, copper, lead, zinc and many other resources.
All these prediction
were completely wrong[2]. Then
in 1973 the World watch Institute started its yearly forecasts of scarcity
of food production. Year by year, predictions go on, almost always later
proven wrong.
Since 1961 the
world population has doubled. And food demand has increased very
fast: every year there are 90 million more human beings to feed in the
developing countries alone. Demand also increases because people
in developing countries are wealthier: they have developed a taste for
meat; and to fatten livestock it takes a considerable amount of grain[3]. But
food production has more than doubled. Although the greater increase of
production occurred in the developed countries, while the population increases
mainly in the underdeveloped ones (and this makes evident that the problem
is not so much of production, but of redistribution of the resources and
of protectionism measures adopted and strictly implemented by rich countries
against poor ones[4],
the Food and Agriculture Organization (FAO), the International Food Policy
Research Institute (IFPI) and the World Resources Institute are persuaded
that agriculture can cope with a growing population[5]for
many decades to come.
A similar history
can be traced for pollution.
During the Seventies
the enemy was nuclear energy; during the Eighties, chemicals and acid
rain. Chemicals were considered the principal cause of the increased incidence
of cancer. However, recent medical statistics agree that the rate of mortality
from cancer not related to smoking has actually declined since 1950[6].The
decline of the forests in Germany and in the U.S., confidently attributed
in the past to acid rain and considered irreversible, reverted its trend
years ago. FAO reports that forest cover in Europe (excluding the
Former Soviet Union) increased by more than four percent between 1980
and 1994 and grew in the first half of the Nineties by three percent;
in the same period growth in the United States was two percent[7]. Few
today attribute the previous decline to acid rain. With cautious
terms, the problem is now described as follows: “Overthe years, scientists,
foresters, and others have watched some forests grow more slowly without
knowing why. The trees in these forests do not grow as quickly as usual. Leaves
and needles turn brown and fall off when they should be green and healthy.
Researchers suspect that acid rain may cause the slower growth of these
forests. But acid rain is not the only cause of such conditions.”[8].
The same considerations
can be applied to other well-known issues, like desertification and deforestation.
In1984, a United Nations report asserted that the desert was conquering
21 million hectares of land worldwide every year. Reports published ten
years later declared that there was no net advance of the desert on a
world scale. In some areas the desert has gained; in some others it has
shrunk. Claims made in the 1980s about deforestation in the Amazon
also today reconsidered gross overestimates: not 20% of the total and
80 million hectares per years (as asserted) but 9% and 21 million hectares
per year during the Eighties, reduced to not more than ten million hectares
in the late Nineties[9]. In
particular, in the Brazilian Amazon, the annual deforestation rate declined
from a peak of more than 20,000 square kilometers in 1988 to just over11,000
square kilometers in 1991 (however, data from the Brazilian government
show that it rebounded to more than 29,000 square kilometers in 1995,
before declining to 18,100 square kilometers in 1996[10]).
In the last ten
years, the focus of the environmental emergency has shifted toward other
issues: climate change and biotechnology among them. But these issues
too have proven extremely controversial and the dangers predicted by environmentalists
again look exaggerated[11].
*
I am, of course,
not asserting that environmentalism has produced only erroneous disaster
forecasts or that environmental policy always worked on the basis on incorrect
assumptions. Nor am I arguing that acid rain, desertification, deforestation,
and climate change are not environmental problems. They are. And there
are numerous reasons to be concerned about the future of the global environment.
Moreover, it must be said that in many cases, as for acid rain and the
greenhouse effect, environmentalists have achieved positive results, forcing
governments and institutions to address environmental problems. Much
environmental improvement, specially in the rich Western countries, can
be attributed to the efforts of the environmental NGOs to draw the attention
of the public opinion and the governments to specific issues.
My aim rather is
to argue that environmentalism has been strongly characterized by a disaster
strategy, an over-dramatization of future environmental world emergencies,
using inaccurate and unchecked scientific data, while forgetting present
environmental disasters. After considering the rationale for and
the effects of this attitude, the article will point out that the changes
occurred in the world in the recent years suggest the adoption of a different
strategy for environmentalism and consequently for environmental law.
2. The effects
of the Disaster Strategy.
The worldwide effects
of the strategy are several.
a) Distortion
of environmental law and environmental policy.
Law, lawyers and
legal policy follow and implement the general policy outlines set for
the sector and transform the outlines into regulation, at the national
and at the international levels. In the international arena, a great part
of the efforts of environmental legal experts has been to respond to issues
stressed by environmentalism, that is to focus on the issues selected
by the disaster-strategy. More specifically, since these issues concern
huge catastrophes set in some distant future, the efforts of the legal
experts have been to build up international legal systems, financial devices,
and cooperative conventions to promote legal and institutional processes
to avoid the futurecatastrophe[12]. Resulting
at the international level is diversion of attention of environmental
lawyers. And environmental policy has been diverted from the many environmental
problems affecting today’s world, that need and require legal solutions
to be resolved.
b)
Distortion of economic and financial budgets.
In the same way,
the disaster strategy adopted by environmentalism diverted financial resources
of the States and of international organizations towards huge and controversial
projects in order to avoid or to limit possible negative future
effects, sacrificing progress on present environmental problems. Today’s
environmental problems which can be confronted and mitigated, if not solved,
receive no or low priority because they do not seem as disastrous as future
problems. The latter, not subject to contemporaneous verification, can
be described as gloomy as anybody wishes. Of course, there is no rational
or ethical way to support this choice, given that the financial and legal
investment in today’s problems makes better economic sense than any other
equivalent investment. Apart from this comparative perspective, there
is no method to be sure that investments on a project to be realized in
the distant future make economic sense at all. In fact, in measuring benefits
in the distant future (say, more than 30-years from now) economic forecasts
are weakened by uncertainty about what will be the state of the world,
the people’s preferences and values, and available technology[13].
c)
Loss of public support.
The disaster strategy
is a vicious circle. The strategist is forced to create new and greater
disasters to hold the attention of the public. The strategist cannot allow
people to say “Oh, another one” and turn the page of the newspaper. He
needs to have the public constantly upset, following the issues, campaigning
and financing. Of course, that reaction cannot continue forever. There
is a point where people, seeing, on the other hand, no concrete results
whatever they do with regard to future environmental crises, and perceiving
concrete results of day to day environmental policy and from tighter regulations
adopted throughout the industrialized world, become insensitive to the
strategy. They no longer care what environmentalists say. There are signs
of decline in public support for environmentalism, especially in the developed
countries. In the last five years the main environmental organizations
have experienced declines in membership (and consequently a consistent
reduction in their financial strength). In many countries “Green
Parties” are loosing political support.
3. The reasons
of the disaster-strategy.
Why has environmentalism
adopted a disaster strategy? I suggest two main reasons.
a) Environmentalism
emerged in postindustrial countries and bears heavy marks of this origin.
For wealthy people in rich countries the concern over possible ruinous
events somewhere in a distant future is more important than the
gigantic environmental problems now oppressing the large underdeveloped
parts of the world. Western environmentalists are much more ready to invest
money and energies to prevent a risk that might affect their distant
off-spring, like the potential (and controversial) warming of the climate
that might happen sometime next century, than to finance efforts
in out-of-sight areas of the world. There present huge environmental problems
need to be solved (such as limitations on air
pollution, reductions in water pollution and water shortages). These
problems destroy the environment and kill thousands of people each year.
For wealthy people
in rich countries the future environment is “our environment”, while the
present environment where underdeveloped people live is “their environment”[14].In
other terms, environmentalism and environmental policy sell what can be
sold. The purchasers of this merchandise live – with few exceptions –
in Europe, North America and Australia. They receive what they are willing
to buy.
b) There
is a second important reason. The disaster-strategy is not particularly
new or unique to the environmental movement: on the contrary, it fits
perfectly in what H.L. Mencken considered a common aim of practical
politics: to keep people under alarm by describing an endless series of
artificially built-up dangers[15].
Environmentalism has adopted the practice, in an attempt to transform
real or not-so-real global problems into epochal issues apt to catch the
attention and the support of the public and of international organizations.
The context for
this strategy choice was a world strictly organized following the Westphalian
model, conceived in 1648 with the Treaty of Westphalia. Under this model,
the world was shared by members of only one type of sovereign legal
entity – the Nation-State – having absolute internal sovereignty. Each
nation-state had (at least formally) legal powers in its external relations
equal to the others. International law and organizations
in contrast have limited powers and are not very effective. Sovereignty
basically meant that governments were free to do whatever they liked to
their own people and to their assigned or conquered territory[16].
In this context,
one rigidly and mutually controlled in order to exclude the emergence
of new world actors, environmentalism began. The disaster-strategy
was a very efficient strategy (probably the only one available) which
would foster emergence as powerful Non-State organizations, and to be
officially recognized as such.
To be sure, this
strategy has been successful and has reached impressive goals in a short
period.
Many environmental
NGOs are today known worldwide, and recognized as legitimate legal entities
at the international level: environmental NGOs – and their counterparts,
NGOs representing the interests of the industry and the business – are
routinely admitted to the negotiations of international agreements concerning
the environment, and to their implementation (where may happen that the
representatives of states need to work as go-betweens in order to compose
the conflicting perspectives of the different NGOs participating to the
discussions)[17].
The same may be
said regarding the internal and local level: there they are represented
by branches of their organization, by political “green” parties, and are
often backed by traditional parties and political organizations.
Moreover, they
have attained great political and financial power; surely they are stronger
today than dozens of States on the world-map. Greenpeace, for example,
with its own fleet some years ago challenged France on the sea
to block a planned nuclear experiment[18].Other
environmental NGOs succeeded in forcing huge corporation to respect their
requests. Well-known are the cases of the shift of McDonald from plastic
bags for his products to paper-bags, following the pressure of some environmental
organizations[19],and
the obligation of three major producer of tinned tuna (Starkist and Chicken
of the Sea and Bumblebee Tuna) to purchase only dolphin-free tuna, that
means tuna fished without nets[20].
4. The changing
world.
Considering the effects of and the reasons for the disaster strategy,
it appears that this strategy cannot be further exploited: not only because
is it impossible to proceed ad infinitum in the circle of future
danger and to maintain public attention and that of domestic and international
political organizations, but also because general conditions that created
this strategy are changing.
Three aspects of
change seem to be directly relevant.
a)
The disintegration of the “Westphalian Model”.
At the turn of
the century we are witnessing the decomposition of the Westphalian-model,
one that has lasted for more than 300 years. A few data: in Europe, at
the middle of the XVII century there were more than 500 public Authorities:
States in all possible sizes and shapes (large, medium, small and
micro) and central and local religious powers with sovereign characteristics
(like territorial control and a monopoly on punishment) cut out
from, or often overlapping with, the sovereignty of the former. At the
beginning of this century, on the world stage there were only States,
reduced to not more than 25. In the same period, we moved from
only 20% of the total available land covered by sovereign States to the
whole planet, another impressive pace, only one apparently countervailing.
At the end of this
process, only one type of sovereign legal entity survived – the States
– which shared the whole world, with absolute internal sovereignty, and
with equal (at least formally) legal powers.
In this century,
especially in the last forty years, this process has not
only ceased but has reverted: legal entities in the world are increasing
in number and in type[21].
The strictly quantitative increase is amazing: the world map contained
62 States in 1914 (25 in Europe as then defined), 74 in 1946, and more
than 200 today. From a qualitative point of view[22], today
we have many new international legal entities: Federations of States,
Unions of States, Cooperation Treaties, Political Organizations (G-7,NAFTA),
Financial and Economic Organizations (World Bank, IMF), Military Organizations,
and International Courts with growing powers eroding the traditional all-comprehensive
sovereignty of the State.
In addition, we
have international NGOs often wealthier and more powerful than dozens
of the existing States. Amongst them, churches and religious organizations,
human rights and health organizations.
In this last group
are to be placed the Environmental NGOs, whose number, power and authority
boomed in the last twenty years so that they, as said before, are now
making a difference in the world affairs and in the internal policy of
some states[23].They
act as transnational pressure groups, and – as said – are routinely admitted
to the negotiations of international agreements concerning the environment,
and to their implementation
But, as many have
pointed out, environmental NGOs and environmental activists should not
be considered simply as pressure groups, but rather as political actors
in their own right, directing a substantial part of their effort to politicize
the civil society[24].
More over, we have
a number of large enterprises (Microsoft, Toyota, IBM, Siemens and Samsung
are the ones mentioned in Raymond Vernon’s last book[25])which
behave as powers independent of the States. Certainly they are more powerful
and rich than many States, and are able – directly or through organizations
representing their interests and through transnational economic institutions
like the World Bank – to superimpose their view of international
relations, of sustainable development and also of an environmental protection
compatible with industrial goals onto the traditional nation-centered
way[26].
The present situation,
far from being stable, is the following: we have many more States on the
stage but also many other actors and legal entities. All are competing
to keep or to attain support, money, sovereignty, and power.
In conclusion,
sovereignty today is something intrinsically different from the recent
past[27].Certainly,
less and less does it mean that governments are free to do what ever they
wish to their own people and to their territory[28].It
has been said “sovereignty, the power of a nation to stop others from
interfering in its internal affairs, is rapidly eroding”[29].
Or, in other words, “Stateswill increasingly be required to take into
account the needs of all members of international community in developing
or applying their policies and laws previously thought to be solely a
matter of domestic jurisdiction”[30].
b)
Economic and financial globalization.
Deeply intertwined
with the disintegration of the Westphalian model, we are witnessing today
another event which is much more a common and general issue than the former.
It is the well-known and often-misunderstood globalization: growing economic
interdependence between States.
Although not without
precedent – Marshall McLuhan wrote in 1962 that electronic interdependence
“recreates the world in the image of a global village” and one
can easily find similar descriptions of the western world before
the First World War – this globalization is a new event. It is characterized
by electronic technology, powerful computers available to the general
public, extremely inexpensive communication, possibilities of free and
quick investing in foreign markets. It is characterized also by the lack
of a centralized government and a centralized policy, although, as many
point out, a new transnational class of powerful managers is emerging:
it is – as Duclos points out, a hyper-bourgeoisie slowly substituting
the traditional levels of command, playing a world-wide business,
floating above national institutions, local cultures and local markets,
usually located in the financial centers of the globalization[31].
All these elements
of the new globalization contribute to deep social and cultural changes
all over the world [32].
Many fear
that globalization carries dangers and pitfalls. Not only will people
lose all kinds of protectionism practices (in the economy as well as in
culture), but also many States, and especially the weaker or the
poorer ones, will be forced to adapt to competition and to the market
rules[33];they will
sell out their national resources and cancel welfare programs, however
meager they were[34].
In particular,
a large part of environmentalists is persuaded that free-trade and trade
liberalization is going to ruin the global environment, causing a sort
of “race to the bottom”: governments compelled to play or perish in the
unavoidable globalization game, will be forced to set lower environmental
standards, in the poorer countries in order to attract investments
and “dirty” industrial activities fleeing from developed countries, in
the wealthy countries in order to avoid the fleeing of industries towards
countries less developed environmental regulations or with a lax enforcement,
and the consequent loss of jobs. Summing up, as DiMento and Doughman pointed
out, “trade liberalization might be seen as rewarding trade partners
uncommitted to environmental protection, thereby removing incentives to
comply with environmental laws and create stricter environmental
standards”[35].
On the contrary,
others think that globalization creates new opportunities for individuals,
multinational companies and countries. With the spreading out of trade
liberalization, the world will become richer, and that is the surest way
to make it cleaner, through promotion of social interest in environmental
quality and capacity to pursue environmental goals[36].
c)
Improvements in the environment and the growing implementation of environmental
regulation at a local level in the industrialized world.
Today the air,
the rivers and lakes, and the forests in the rich industrialized countries
– that is, in the basin of support of environmentalism – are,
at the local level, much better off than they were a few decades
ago. Once an issue is identified as an environmental concern, something
in most cases is done about it. Many sources of air pollution and lead
levels in the air have been brought under control. Waters are cleaner,
since wastes are now treated before release. In other words, where growth
has occurred, the environment has often become cleaner and healthier.
The reasons are several: the spreading of environmental consciousness
and education, the insertion of environmental issues in the agenda of
many political parties, the success of environmental regulations (criminal
as well as administrative and civil) and their implementation.
____0_____0_____
What will happen
with environmentalism and environmental law in this new world? What
will emerge from the decline of the Westphalian model and the boom of
globalization?
5. The changing
strategy of environmentalism and environmental policy.
The point of departure
is that the Wesphalian model centered on States and on governments free
to do whatever they wanted to their territory, and the old, non-globalized,
free-trade-adverse economy, have together contributed to the destroying
of the environment. The reason is simple: the model was not imagined to
cope with the great problems of management and preservation of the
environment in an industrial and postindustrial world.
As soon as these
problems emerged and it became clear that States alone could not possibly
solve them, effort was directed to build up international agreements to
limit their power and their sovereignty, keeping the States always at
the center of the scene. The ultimate result has been reached in
the Nineties, when the concept of “common concern” of the States
has been widely developed[37],reaching
the ultimate formula of a “sharedbut different responsibility”
for environment preservation, regarding the different impact of the developed
and underdeveloped countries to the present environmental degradation.
The results have
been meager.
Firstly, the rich
countries, although contributing substantially to the past and present
environmental degradation, refuse to change their “style of life” (as
President Clinton has declared) and to reduce their impact on the environment.
Secondly, it has
proved extremely difficult to secure effective and trustworthy cooperation:
as always in the case of collective action here there is no effective
enforcement, anyone can be a free rider, while others comply with
agreements[38].
Eventually, international
law is not binding, and there is no possibility of forced implementation
of the rules (apart war, obviously reserved for the most important violations);
countries not adhering to international law on some matters generally
do not bear consequences of their choices (and many countries, like the
United States consider their Constitution prevailing over International
Treaties). As John Bolton points out, “governments often follow only
those international laws that suit their interests and ignore those that
do not” , concluding that “internationallaws are not law” in
the common sense of the expression[39].
We have seen that
the choice of the disaster-strategy on the world scale by environmentalism
can be interpreted as an efficient move to fight State monopoly over its
territory and to affirm environmental organizations as legitimate actors
in the world arena.
The decline of
the Westphalian model, the expansion of globalization and the now consolidated
presence as legitimate actors of environmental organizations
(together with other non-state organizations) provide a great opportunity
for reshaping and a change of strategy. In this respect, we do
not agree that this evolution, and globalization in particular,
pose a great danger for the environment. The rich, developed countries
continue to consider the rest of the underdeveloped world an area to be
plundered as soon as the occasion arises, while in the underdeveloped
world poverty, need or greed of governments and of the states leads to
collapse of resources and an increase of pollution. However
dangerous globalization may be, we should not forget that until
very recently the State-centered, non-globalized world produced the
damages to the environment we experience today. Thus we must trust in
a non-State-centered, globalized world to find the path to change.
Nor can we
agree with the fundamentalist view affirming that wealth damages the environment[40]. These
views do not take into consideration the fact that in this century
where we had growth, we also had a healthier environment. It is in the
poor countries, with no or very slow growth, where air and water pollution
is increasing, where deforestation remains a problem, where it is very
difficult to cope with the immense problems connected with preservation
and with environmental safety. Aaron Wildawsky’s provocative assertion
that “wealthier is healthier”, used in the Seventies to mock the
tough anti-growth environmentalist position, today is supported by experience[41].Consequently
we should agree with one conclusion stressed years ago in the Bruntdland
Report: poverty is the principal cause of the degradation of the environment
all over the world[42].This
conclusion is both widely cited and methodically ignored.
World poverty in
fact is increasing at a shocking rate (although some underdeveloped countries
– like India – are witnessing a spread out improvement in the conditions
of life of their inhabitants). According to Lant Pritchett, in 1870 Great
Britain and the United States had an income per capita nine times
that of the poorest country. 120 years later, in 1990, it was more than
45times. If we take the 17 richest countries of 1870, their income
per capita was2.5 times that of all the other countries together; today’s
17 richest countries have an income of 4.5 times that of the rest of the
world[43]. If
we believe in the causal relation between wealth and environmental quality,
and if we do not wish to witness in the next century the twilight
of environmental care and preservation and the waning of environmental
law and policy [except in a few fortunate spots of the world], the
real enemy to fight is poverty.
At this point,
it is easy to imagine two objections by environmentalists and environmental
lawyers.
The first is: this
is not the business of environmental law. This position is inaccurate
unless policymakers and practitioners wish their business to be confined
locally to a progressively shrinking clean environment and globally to
disaster-forecasts. It is also wrong, because, having been so concerned with
the negative environmental effects of growth, the environmental community
should now focus on the more justified concerns about the negative environmental
effects of poverty. Above all, this position is wrong because the
major causes of environmental degradation – whatever they are – should
be the business of environmentalists and environmental policy.
The second objection
is understandable: how possibly can environmental law and its practitioners
fight poverty in the underdeveloped world?
This is the focus
of the problem.
Presently, the
fight against poverty is pursued by many of the forces who have affirmed
and extended their powers in the non-Westphalian globalized world. Economic
and financial organizations as well as NGO concerned with aids to under
developed countries and with the protection of the human rights are planning
and starting programs where the fight against poverty is at the center
of their activity.
Environmental organizations
should not stay apart from this global movement but should take an active
part, exploiting their position of being an “actor sovereignty-free”[44].
On one side they
should increment the assuming of official roles, cooperating with all
state and non-state entities, contributing with their experience and their
specific skills; on the other side they should expand their activity in
the “global civil society” (that means in the “complexnetwork
of economic, social and cultural practices based on friendship, family,
market, voluntary affiliation” located above the individual but below
the state, across national boundaries)[45].
In particular,
environmentalists and environmental lawyer must take an active role in
the collective political as well as legal action that is beginning to
be organized in order to lift environmental standards adopted by industry
and transnational corporations in the underdeveloped countries, and
to set general rules and a regulatory international architecture for international
investments whose respects should be imposed. This is the only way to
avoid a “race to the bottom” in environmental standards by underdeveloped
countries in order to attract and to keep investments and industries.
This collective
action cannot be differed, considering the huge increase of private investments
in these countries in the last years, in comparison with public or international
funding (the private investments, less than half of the total in1990,
have reached ¾ of the total 1995). Private investments are of course much
more available than public ones to take profit of the need of money and
often of the corruption of the regimes at power in order to pursue the
goal of production at low costs and without excessive controls[46].
Moreover, environmental
NGO and environmental law must play an active role in forcing wealthy
states and transnational corporation to adopt as a strategic goal not
short term commercial gains via liberalization, but a long term perspective,
consisting in a wider set of integrated economic and environmental as
well as security and social objectives[47].
In other terms,
globalization and free-trade request more controls, not more liberalization.
Environmental NGO must jump on this occasion and assume a leading role
in the planning of creative policies both at home and abroad[48]:the
governance of international capital flows and of investments in underdeveloped
countries should become one of the key environmental policy issues in
the next future.
There is another
important point.
When we discuss
about the issue concerning fight against poverty, it should not be forgotten
that the poverty of a country depends much more on the way it is governed
than on natural conditions or social constraints (as we all like to think).
Evidence of this
century suggests that there is a strong link between poverty and absence
of democracy and dictatorship, between poverty and lack of civic and economic
freedom, of a predictable regulatory and economic climate. Protecting
human rights, investments and property rights, enforcing the law, avoiding
inflation and corruption are the independent causal factors offering a
way out of poverty[49].
That means that
these are the best strategies with which to promote also environmental
protection. Where human, civic and property rights are fairly regulated
– not simply abandoned to the market forces – where law is enforced,
where democratically elected governments avoid corruption and inflation,
where participation in the development of legislation is consented and
transparency is guaranteed, where the judiciary system is really independent,
there we have the strongest possibilities to escape from poverty: this
means better education, more knowledge, better health, and, in the end,
as a result, a better preserved environment.
The conclusion
is that probably for the first time – due to the complex changes described
above – the deep links existing between all the non-State entities operating
today in the underdeveloped world emerge in full light: since human rights,
poverty, democracy, environment all are intertwined, no organization taking
care of on of this aspects can achieve his goals without the assistance
and the cooperation of the other ones.
On the other side,
the possibility to get access into the globalized world and the danger
of being excluded makes the governments of many underdeveloped country
much more ready to accept principles, with regard to democracy, human
rights and fair regulation, ignored until a few years ago.
For environmentalism
and environmental policy is the right moment to turn the attention to
disasters happening in the present moment, at very short distance from
the gardens of the rich world. Not only States and governments, but also
environmental NGO and environmental law will determine, by the policies
they adopt, by the practices they follow, whether the possible benefits
of this era will be exploited or squandered.
· I wish to express
my thanks to Prof. Joseph DiMento for his advice, for his suggestions
and for his final editing of the paper.
[1]
The position affirming that, whatever the future will be, certainly it
will be different from whatever is presently imaginable
finds its roots in an intuition of Hegel concerning what he called the
“zoè” (the thinking life). Human beings sometimes think that they can
observe and modify the external world; sometimes they think that they
are a mere product of the world. Both attitudes are wrong, said Hegel.
Human beings are a part of the world they observe, they cannot avoid observing
themselves while observing the world. They cannot think as if they were
not a fusion with the reality that they want to explain. Zoè is the result
of this fusion, irremediably linked to the observer and to the observed
reality. None of us can escape from this condition: this is the limit
of our imagination of the future that we cannot overcome.
[2]
Unless otherwise indicated. the following data come from: MELISSA LEACH
– ROBIN MEARNS, The Lie of the Hand, Currey\Heinemann UK, 1995;
Plenty of gloom, in The Economist Dec. 20, 1997, p.21.
[3]
According to FAO calories consumed per capita in 1993 are 27% higher in
the Third World than they were in 1963. Today, 1/3 of the world’s grain
goes to feed animals; to meet growing meat demand, the world’s livestock
population has boomed. Cattle numbers rose by 40 percent between 1961
and 1997, pigs by 130 percent and chickens by 246 percent: see ALLEN HAMMOND
EMILY MATTHEWS, Critical Consumption Trends and Implications: Degrading
Earth’s Ecosystems, World Resources Institute <www.wri.org>
[4]
It is the case of the strict barriers on imports of food products in the
European Union countries, in order to protect European agriculture.
[5]
It should be considered, however, that, following the lowest of three
projections made by the U.N., the world population will stabilize around
2040 at the level of 7,5 billion, then start to decline.
[6]
In 1930, the annual rate of cancer mortality in the U.S. was 143 per hundred
thousand; in 1990, adjusted for the raising age of the population, it
was 190 per hundred thousand. But, if we omit lung cancer the death rate
would have dropped 14 % between 1950 and 1990: see ROBERT A. WEINBERG,
One Renegade Cell: How Cancer Begins, Basic Books, 1999. The same
results could be achieved changing to a low-fat, low-meat diet, adds Weinberg.
For interesting comments, DANIEL J. KEVLES, Cancer: What Do They Know?,
in New York Review of Books Vol. XLVI n.14, Sept.23, 1999, p.14. In general,
on the relation between environmental pollution and cancer and on the
questions whether adverse health effects can be attributed to exposure
to dioxin, PCBs, chemical pollutants, trichloroethylene, see KENNETH R.
FOSTER, DAVID E. BERNSTEIN & PETER W. HUBER (ed.), Phantom Risk:
Scientific Inference and the Law, Cambridge, MA: M.I.T. Press, 1993
(Paperback Edition, 1999).
[7]
See WORLD RESOURCES INSTITUTE, Washington DC www.wri.org,
sector Forests.
[8]
Acid Rain Program of EPA –
http://www.epa.gov/acidrain/student/forests.html.
[9]
There is no agreement about this issue. For example, in opposition with
the above-mentioned data, John Terborgh, a prominent ornithologist with
long experience in the Amazon and co-director of the Center for Tropical
Conservation at Duke, asserts that the rates of deforestation have increased
during the 1990s.: cfr. J. TERBORGH, Requiem for Nature, Island
Press 1999.
[10].
For more information see http://www.wri.org/wri/trends/deforest.html.
[11]
For the global warming issue, see for general documentation “Global Warming
Central: The Source for Information in the Global Warming Debate in http://joshua.law.pace.edu/env/energy/globalwarming.html.
More critical views on the issue can be found in
http://www.globalwarming.org/.html. For a downsizing view of the issue,
see CURT SUPLEE, Studies May Alter Insights Into Warming in Washington
Post March 15, 1999; Page A7, reporting about two new studies (published
in the previous months in Nature and in Science) of the
Earth’s ancient atmosphere “that may alter the way scientists understand
the relationship between airborne carbon dioxide and climate change, and
the entire dynamics of future greenhouse global warming” . The US
Environmental Protection Agency (EPA) estimated in 1995 that sea levels
would rise at an average of 34 cms per year until 2100: a significant
reduction compared to the Agency’s 1983 estimate of 175 cms. (cfr. http://www.reast.demon.co.uk/gw9510.htm).
[12]
In the Nineties, the concept of “common concern” has been developed: the
1992 Climate Change Convention declares that change in the earth’s climate
and its adverse effects are a common concern of humankind”. Convention
on Biological Diversity, June 5, 1992; see PHILIPPE SANDS, The Greening
of International Law: Emerging Principles and Rules, in Global Legal
Studies Journal 1, 2 in ………….
[13]
See on this issue PAUL PORTNEY – JOHN WEYANT, Discounting and intergenerational
Equity, Resources for the Future, Washington DC, 1999
[14]
This attitude can be traced back to the definition of sustainable development
offered by the Brundtland Report, where the equity in the inter-generational
sense (i.e., limiting development to protect the options of future generations)
as been considered as important as the distributive justice in the intra-generational
sense (i.e., in its commitment to meeting “the needs of the present”):
see WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT, Our Common Future
43 (1987). About this issue, see MICHAEL MCCLOSKEY, The Emperor Has
No Clothes: The Conundrum Of Sustainable Development, in 9 Duke Environmental
Law & Policy, 1999, 153.
[15]
A good example is offered by the “meteor” or “asteroid”- syndrome, used
by United States and China to pursue and to justify experiment in military
and nuclear matters. O this issue, see MIKE DAVIS, Rain Of Iron And
Ice: The Very Real Threat Of Comet And Asteroid Bombardment, in Nation
v. 263, n.13, 20-10-1996 p.38-42.
[16]
Contributions to the understanding of sovereignty have been numerous.
A good outline of this issue can be found in SYMPOSIUM, The Decline
of the Nation State and Its Effects on Constitutional and International
Economic law, in 18 Cardozo Law review 903, 1997. A provocative view
of the origin and the development of sovereignty in the modern era is
offered in L. FERRAJOLI, La Sovranità nel Mondo Moderno, Laterza
Bari 1997.
[17]
Recent examples of international negotiations where NGOs are admitted
are offered by the …Mediterranean (Scovazzi) and the Intergovernmental
Agreement on Persistent Organic Pollutants (so-called POPs) à Peter Lallas.
In general, on the participation of NGOs and environmental NGOs in particular
to international negotiations see DAVID FORSYTHE, Human Rights And
World Politics, Lincoln, Uni. Of Nebraska 1989; P. J. SANDS, The
Role of NGO in Enforcing International Environmental Law, in W. E.
BUTLER ed., Control Over Compliance With International Law, Dordrecht,
Olanda, 1991.
[18]
The 1997 budget of Greenpeace was $ 130 million, with $92.5 million to
invest in specific campaigns; the contributors in 1991 were almost
5 million.
[19]
See JOHN HOLUSCHA, Packaging And Public Image: McDonald Fills A Big
Order, in NYT Nov 2, 1990.
[20]
See DAVE PHILLIPS, Three Companies To Stop Selling Tuna Netted With
Dolphins, in NYT Apr 13, 1990 A1, A4
[21]
S. CASSESE, Gli Stati nella Rete Internazionale dei Poteri Pubblici,
in RTDP 1999, 321 – 329, spec. 328; D. ZOLO Cosmopolis. La Prospettiva
del Governo Mondiale, Milano 1995; Daedalus vol.124
[22]
J. ROSENAU, Turbulence in World Politics, Brighton 1994.
[23]
see PAUL WAPNER, Politics Beyond The State: Environmental Activism
And World Civic Policy, in World Politics 47, n.3, Apr.1995, p.311-341.
See also MARGARET E. KECK – KATHRYN SIKKINK, Activists Beyond Borders:
Advocacy Networks In International Politics, Ithaca, Cornell 1998
and II. DD., Transnational Advocacy Networks In International And Regional
Politics in International Social Science Journal v. 51, n.1, March
1999, p.89.
[24]
See on this wide issue RONNIE LIPSCHUTZ, Restructuring World Practice:
The Emergence Of Global Civil Society, in Millennium 21, 1992; see
also RICHARD FALK, Explorations At The Edge Of Time, Philadelphia Temple
Uni. Press 1992.
[25]
RAYMOND VERNON, In the Hurricane’s Eye, Cambridge Uni. Press, 1998
[26]
see MATTHIAS FINGER – JAMES KILLOYNE, Why Transnational Corporations
Are Organizing to Save the Environment, in Ecologist v. 27, n.4, July
1997, p 138-143. The Authors maintain that the big transnational corporations
have assumed the control – through the allocation of funds of the World
Bank – of the business related with the protection and the enhancement
of the environment in particular in the underdeveloped countries. They
specifically point out the intense activity of a NGO representing the
big business, the World Business Council on Sustainable Environment (WBCSD).
With specific regard to the position of the World Bank, Greenpeace remarks
that “In response to pressure to increase financing for global environmental
protection, the World Bank took the lead in 1991 in establishing the Global
Environment Facility (GEF). The GEF would enable the institution to become
the key agency in financing two key environmental conventions – the Framework
Convention on Climate Change and the Biodiversity Convention, both signed
in Rio. Administration of the GEF not only gives the Bank new government
funds to administer, it also provides a “green” cover for many environmentally
destructive bank loans”: see GREENPEACE, World Bank Fact Sheet n.3,
World Bank And The Environment: Some Things Never Change.
[27]
KEITH AOKI, Considering Multiple and Overlapping sovereignties: Liberalism,
Libertarianism, the National sovereignty, Global Intellectual Property
and the Internet, in 5 Indiana Journal of Global Legal Studies, 443,
1998.
[28]
As many have remarked, in 1999 the Kosovo war and the trial against General
Pinochet are evident signals of the rising of a serious challenge
to the principle: limits of sovereignty are deeply changing.
[29]
WALTER B. WRISTON, Bits, Bytes and Diplomacy, in Foreign Affairs
Sept.\Oct. 1997, 174.
[30]
PHILIPPE SANDS, cit., …; see also GAETANO SILVESTRI, La Parabola
della Sovranità. Asesa, Declino e Trasfigurazione di un Concetto, in
Rivista di Diritto Costituzionale n.1, 1996, p.3 ss.
[31]
Regarding this new class, see DENIS DUCLOS, Una Nuova Classe si Impossessa
delle Leve del Potere Mondiale. La Nascita dell’Iperborghesia; see also
JEAN-CLAUDE MILNER, Le Salaire de l’idéal, Seuil, Parigi, 1998; SASKIA
SASSEN, Città Globali. New York – Londra – Tokyo, UTET, Torino 1997.
[32]
THOMAS L. FRIEDMAN, The Lexus and the Olive Tree, Farrer, Strauss
and Giroux NY 1999; W.WRISTON, supra note 13, observes that “the information
revolution is… profoundly threatening the power structures of the world”,
p.175. see also SASKIA SASSEN, Global Financial Centers in Foreign Affairs
Jan-Feb 1999, p.95\97, remarking that global capital markets are continuing
the process of integration into a new supranational order, while the international
network of financial centers is expanding.
[33]
Although many think that globalization is simply a matter of political
choices: see ETHAN KAPLAN, … in Foreign Affairs; R. GILPIN, The Political
economy of International Relations, Princeton 1987 p.88 who speaks
of the new economy as a product of a permissive international order
determined by the choices of some states which can impose the rules of
the game on all the others
[34]
see ULRICH BECK, Was ist Globalisierung? Irrtumer des Globalismus,
Antworten auf Globalisierung, Suhrkamp Verlag, Frankfurt 1997, p.26.See
for example RAYMOND VERNON, cit., suggesting that the relatively
benign climate in which multinationals have been operating during the
past ten years could be soon facing rough waters, especially in European
countries where fears are spreading that a too-open economy endangers
welfare.
[35]
JOSEPH DIMENTO – PAMELA DOUGHMAN, Soft Teeth In The Back Of The Mouth:
The NAFTA Environmental Side Agreement Implemented, in The Georgetown
International Environmental Law Review, v. 10, n.3, 1998, p.653.
[36]
This is the position of The Economist: see Why Greens Should Love Trade,
9/15 Oct. 1999, p.17
[37]
The 1992 Climate Change Convention declares that change in the earth’s
climate and its adverse effects “are a common concern of humankind” Convention
on Biological Diversity, June 5, 1992; see PHILIPPE SANDS, cit.
[38]
This last point is examined in JOHN DUNN, Introduction: Crisis of the
Nation State, in Political Studies 1994, XLII, 3-15, at 13.
[39]
JOHN BOLTON, The Global Prosecutors. Hunting War Criminals in the Name
of Utopia, in Foreign Affairs March-April 1999, p.157, 159.
[40]
M. ZURN, Globale Gefahrdungen und Internationale Kooperation in
Der Burger im Staat n.45, 1995, p.51
[41]
on this issue, see LANT PRITCHETT – LAWRENCE SUMMERS, Wealthier is
Healthier, in Journal of Human Resources v 31, n.4, Autunno 1996,
p.841-869.
[42]
WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT, OUR COMMON FUTURE, cit.
[43]
LANT PRITCHETT, … , in Journal of Economic Perspectives, 1997 <www.jstor.ac.uk/journals/08953309>
; see also The Economist, A Survey of the 20th Century,
Sept 11, 1999, p.27
[44]
The expression is in W. ROSENAU, cit.
[45]
See RONNIE LIPSCHUTZ, cit.; see also ALBERTO MELUCCI, The Symbolic Challenge
Of Contemporary Movements in Social Research 52, 1985; RUSSELL DALTON
– MANFRED KUECHLER, Challenging The Political Order: New Social And Political
Movements In Western Democracies, New York, Oxford Uni Press 1990.
[46]
See LYUBA ZARSKY, International Investments Rules and the Environment:
Stuck in the Mud, in Foreign Policy, v. 4. 22, 15-8-1999, p.1
[47]
see LYUBA ZARSKY, Toward a New Foreign Policy, in Foreign Policy v.4,
22, 15-8-1999 p.3
[48]
RICHARD N. HAASS – ROBERT E. LITAN, Globalization And Its Discontents.
Navigating The Dangers Of A Tangled World, in Foreign Affairs Mai-June
1998, n.3, p.2\6.
[49]
See The Fraser Institute, Economic Freedom in the World, in <www.freetheworld.com>.
The Institute uses seventeen measures of freedom, considered as a broad
concept, requiring not only a free market but constant regulatory intervention
by the State. See also JONATHAN ISHAM, DANIEL KAUFMANN AND LANT PRITCHETT,
Governance and the Returns to Investment: An Empirical Investigation,
World Bank-IRIS, IRIS Working Paper No. 186, 1998. The paper
link measures of societal-level participation to project-level performance.
The participation variable comes from Freedom House’s Civil Liberties
Index, that covers thirteen participation-related items, including the
right of peaceful assembly, freedom of opinion and expression, the right
and opportunity to take part in the conduct of public affairs, the right
to freedom of opinion and expression, and the right to form trade unions.
In general on this still controversial issue see ROBERT A. MITCHELL, How
to link democratic governance with Economic Growth, in American Diplomacy
vol.3 n.4, autumn 1998 www.unc.edu/depts/diplomat/amdipl_9/mitchell.html
: Mithcel writes that “the usual assumption is that <a democratic
government> is the independent causal factor that improves an economy’s
performance. In the absence of widely accepted evidence supportive of
these linkages, there are advocates of the opposite causal relationship,
as partially reflected by those who would delink trade and human rights
policies toward growing overseas markets for U.S. exports. These advocates
argue that market-based economic growth will lead to greater democracy,
although the reasons for this are not always clear”.