The leading authority on international environmental and global climate change law has rejected prevailing criticism, saying that developing countries have benefited from international legal protections.
In the fifth biennial Ingram Lecture at UNSW Sydney, Professor Daniel Bodansky said that international environmental law was not a threat to developing countries and he had come to “praise international environmental law, not to bury it”.
“Although international environmental law has many weaknesses and flaws – and it has not solved many problems or concerns for developing countries – nevertheless, I think it has been responsive to developing countries and served them in a variety of ways,” Professor Bodansky said.
“Curbing Northern consumption, remedying the ills of colonialism, solving problems of global injustice – these are not the strong suits of international environmental law.”
This failure to address historical and continuing injustices, such as economic exploitation or liability and compensation for climate change, however, is outweighed by its positive influence in international relations, Professor Bodansky said during the lecture last week.
International environmental law enables developing countries to self-advocate and regulates self-serving activities of developed states, while largely insulating developing countries from the burden of onerous regulations, he said.
Professor Bodansky challenged the view that international environmental law is dominated by the interests of developed nations, pointing to the amplification of developing countries’ interests through negotiating blocks in international negotiations.
The flexibility and respect for national sovereignty written into international environmental law also allow countries to unilaterally determine their national commitment, providing additional means for developing countries to protect their interests, he said.
The Foundation Professor of Law in the Sandra Day O’Connor College of Law at Arizona State University shared his Top 10 list of ways that international environmental law can be “their friend rather than their foe”.
This included the provision of information to developing countries to enable them to make educated choices, notable in relation to the trade of banned chemicals and pesticides.
For example, the Rotterdam Convention (Prior Informed Consent) procedure circulates information about regulatory decisions to ban or severely restrict industrial chemicals for health or environmental reasons in their states of export to its registered parties.
This prevents chemical manufacturers from exploiting new markets in developing countries who might otherwise be unaware of the dangers, a practice known as toxic colonialism.
International environmental law also serves to guard developing countries against detrimental self-interest, Professor Bodansky said.
The 1995 Basel Ban Amendment to the Basel Conference, for example, prohibits the export of hazardous wastes from developed countries to less developed countries, restricting the potential for developing countries to be tempted to accept financial rewards in return for toxic waste.
More broadly Professor Bodansky’s list covered ways in which international environmental law helps reinforce developing countries’ sovereignty, assists them with resources and capacity-building, and helps them participate more effectively in global commerce.
Professor Bodansky served as the Climate Change Coordinator at the US Department of State from 1999-2001, on a leave of absence from academia, and was an attorney-advisor at the US Department of State from 1985-1989. He has consulted for the United Nations in the areas of climate change and tobacco control.
The Ingram Visiting Fellowship is funded by the Ingram Fund for International Law and Development established in 2002 by Mr James Ingram AO, former Executive Director of the United Nations World Food Programme.
In addition to delivering a public lecture, Ingram Visiting Fellows undertake collaborative research activities and projects with researchers and academic staff within the UNSW Law Faculty on current issues of international law, having special regard to the concerns of developing countries.
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