Why Sir Geoffrey Palmer supports the “Wise Response”
From 1987 to 1990 I was Minister for the Environment in New Zealand.
It was during that time the Resource Management Act was designed. Now 22 years after it came into effect there are moves by the Government to weaken the environmental protections contained in Part 2 of the Act. I was lucky enough to go the Earth Summit in Rio de Janeiro in 1992 and that Conference made too little progress in addressing global environmental problems. These experiences gave me a continuing interest in environmental law and the state of the planet,
I have come to realise that both New Zealand and the planet are imperilled by policy paralysis on the critical issues we face. New Zealand used to be a leader in addressing the problems of climate change and now we have slipped. Our own domestic environment faces difficult challenges from policies that involve the intensification of agriculture and will increase pollution of New Zealand’s waterways.
I November 2013 I published a lengthy memoir: Geoffrey Palmer, Reform Victoria University Press, 2013). It contains a long chapter on the environment, including such topics as the making of the Resource Management Act, saving the ozone layer, stopping drift net fishing, climate change and the inadequacies of international environmental law. I offer here the concluding portion of that chapter to explain why I think the situation deserves attention from concerned citizens.
What I think about the state of International Environmental Law
All these experiences led to a continuing interest in international environment law that has culminated in an American law school text, a book that over the last twenty years has gone into three editions. I shall try and summarise what I have learned and what my fears are. In doing so I must acknowledge my debt in this to my two co-authors Professor Burns Weston with whom I first taught at the University of Iowa in 1969 and Professor Jonathan Carlson of the University of Iowa. What I have written draws heavily upon the preface of our 2012 book.
International environmental law is an intensely practical subject although sometimes it does not appear so. That appearance is driven by the formidable problems of uncertainty and science that lie at the root of so many of the environmental problems that afflict the planet.
The real world practicality of the subject flows from the fact that political leaders, diplomats, public servants, business leaders, business and business advisers and civil society all now find themselves enmeshed in international environmental issues for significant portions of their working lives. This tendency follows the increasing globalisation of business and commerce and it is fed by the fact that no nation state alone can address and solve problems that require concerted collaborative action from several or many states.
The environment affects us all and influences all human activities that take place here on earth. On the other hand it is an uncomfortable fact that human activities seem to constitute the root cause of most of the international environmental problems we face. To some degree humans are imperilling their own future or even that of their species. Clearly natural disasters like earthquakes and volcanic eruptions are beyond human intervention, yet human activities in combination with natural disasters can also be devastating – think earthquakes, tsunami, and Japanese nuclear power plants.
The global community seems to lack the political will and determination to tackle many of these problems and solve them. While substantial commitment was present in earlier times, particularly around the time of the United Nations Conference on Environment and Development in 1992 at Rio de Janeiro, attention is now focussed elsewhere. The first edition of our book appeared two years after that Conference. It was a time of optimism and hope although progress at Rio did not match the magnitude of the problem. It is now more than ten years since the second edition of our book appeared in 1999. The way we see it the prospects for the health of our global environment have dimmed even since then. Economic adversity has shifted the political spotlight onto more immediate and serious economic problems flowing from the financial meltdown, the consequences of which continue to occupy the international community.
It seems to us that the last twenty years since Rio have by and large been wasted. There have been significant achievements – the improvement in the condition of the hole in the ozone layer is one of the most obvious – but the overall report card on progress in solving the environmental problems must receive a failing grade. We have had a reasonably constant stream of treaties and conventions that have been added to an already thick wad of international environmental instruments that cover in total something approaching 2,000 pages; but hard questions have to be asked. Have they made a difference or a sufficient difference? My co- authors and I have been afflicted with a growing sense of pessimism. The outlook for our grandchildren appears bleak and the question has to be asked whether the current generation has failed future generations.
The condition of the international legal order seems to us not to be fit for purpose when it comes to dealing with the global environmental challenge. The incubus of outdated ideas about state sovereignty too often prevents progressive and necessary outcomes in a multitude of international environmental negotiations. The frustration, the waste of time and resources and the spinning of wheels that these negotiations involve should not be underestimated. These failures are attributable directly to the structural weaknesses of the international legal framework.
A new global legal regime bringing the virtues of the rule of law to protect the international environment seems as remote in 2013 as it was when I first taught the subject in 1991. While humankind can discern and analyse the needs it lacks the means to devise and implement measures to address those needs. I have developed forward this view not in some fit of impatient crusading zeal but on the basis of a sober, realistic assessment of where the world is at, both in terms of theory and of practice. Humankind’s destruction and defilement of the natural environment is seriously endangering the continuation of life on this planet. The failure is one of governance.
The essence of the task of the international environmental lawyer is to marry the techniques and modalities of public international law and apply it to what can be called the Global Environmental Problematique. This involves a complex matrix of scientific, political social, economic and ethical considerations. The task here is to try and secure an understanding of the nature and quality of the planet’s environmental problems and different intellectual perspectives that can be used to analyse them. Is there an overarching problem or a series of discrete problems? No real progress will be made until issues of equity – on a global scale – are addressed, and problems rectified. The abstract, intellectual ‘North-South problem’ takes real meaning only if one examines and compares the lot of wealthy European or American individuals with that of a Chinese, Brazilian or Indian peasant. They are not the poorest in the world but they are numerous and have enough power to do something about the inequity, which will make the problem worse while they try to catch up. They are also aware that to a degree their own ‘environmental poverty’ is the result of the greed of developed nations and their colonial exploitation.
It is necessary to appreciate that international environmental law comprises law plus – and the plus draws from many academic disciplines that have important contributions to make when it comes to analysing both the problems and solutions. Virtually all of the sciences are engaged: physics, chemistry, ecology, meteorology, mathematics, atmospheric science, genetics, biology and geography, the last a discipline that spans both natural and social sciences. Even engineers who deal with earthquakes are looking increasingly these days to social science research for dealing with how to handle the human problems that arise when dealing with people whose houses have been destroyed by earthquakes. Philosophy, ethics, feminism and anthropology all offer insights that can be valuable in the field of international environmental law.
Economics and the role of the market in the allocation of resources loom large in the international environmental law arena. Unbridled exploitation of natural resources can have profound and adverse environmental effects. The problem of externalising the environmental costs imposed by this exploitation can have bad effects and export of the costs to nation states other than one’s own is an issue that clearly arises. The polluter pays principle is firmly enough established and so is the precautionary principle but often they are avoided or evaded. Special interests can and do “screw the scrum” as they say in rugby, allowing subsidies for particular activities that may be environmentally deleterious.
When it comes to environmental issues the market fails to capture many of the values and contributions that are at play. The ecosystem provides many services to us all of which we are almost oblivious and these are difficult to deal with in market transactions – forests that reduce soil erosion as well as capture carbon, lakes that provide us with recreation, bees that pollinate crops and fruit trees, and shellfish that filter water pollution. Mountains and beaches provide many benefits both sporting and spiritual. How does the market cope with these?
Not only are battalions of scientists and economists, with their splendid but worrying diversity of views, required to analyse the right questions to ask, but the making of decisions to rectify the problems are required, and here is located what is often the missing link. Politics is the key – if politics is the art of the possible then the global environment seems to be testing us beyond the collective means at our disposal with which to respond. A famous political scientist Professor Harold Lasswell once stated, in a rather anthropocentric view of politics, that it was all about who got what, when, where and how. And if that is the case, as it certainly seems to be at least in the liberal democracies of the world, then who guards the environment?
In any age when specialisation and compartmentalisation seem in fashion and are necessary because of the complexity of things as we now understand them, international environmental law is a field in which analysts are required to put it all together again after looking in detail at the component parts. Some overall perspective, some big picture view is necessary, a quality that does not come easily to lawyers who like to and often need to think small.
What is called the law of ecological commons is based on the idea that centralised scientific and bureaucratic management has not succeeded in solving environmental problems over the past fifty years and more locally tailored, network driven solutions are necessary. Governance requires the formation and flourishing of commons. There are some international models for this, and the treaty regime that governs Antarctica is probably the closest real life model we have although space law is another one. For my co-authors and I an important and new emerging question is whether the present state‑centred and corporate order can be effectively challenged?
New thinking is required in the field given the nature of the problems and the failure to adequately address them. It is necessary to fashion a new approach designed to navigate around the problems of the past by taking a radical new approach. Humankind’s modern history is tragically marked by the squandering of non‑renewable resources, the wanton killing of precious life species, and the overall contamination and degradation of delicate ecosystems. So severe have these ecological misbehaviours become, indeed, that, alone and together, they now threaten Planet Earth to a degree unprecedented since the dinosaurs.