This reflection paper starts with the discussion of the complicated relationship between men and the environment, as this is believed to be a key to understanding the shape of modern environmental law. Even though the historical perspective to grasp this relationship’s nature is essential, the values that the societies at the current stage of history hold matter the most and have a bigger impact on the legal system. It is undeniable that there is a link between Western thought and international environmental law. However, it is also shaped by the ideas from other parts of the world, which makes this branch of law, at least on the surface, benefit both developing and developed states. Talking of this point of how international environmental law treats all the countries equally, there is an opinion that the lack of capacities of developing states should be recognized as part of this law (Halvorssen, 2019). However, as seen in both chapters provided for reading, this is the predominant view in the literature.
The most basic division that one can refer to when discussing the kind of the ‘men-nature’ relationship is the so-called “anthropocentric” versus “non-anthropocentric” perspectives. Anthropocentrismioritize the wellbeing of people as well as their rights. Some find that such anthropocentric doctrine as utilitarianism eventually can back up the conservation of nature since it can provide “the greatest benefit to all concerned” (Fisher, 2014, p. 41). The introduction of the doctrine of “ecological justice” in this light is a way of internalizing a non-anthropocentric doctrine with an anthropocentric paradigm of justice. It also seems to be an approach to reconcile two perspectives to provide the most sound argument for creating an ethical foundation for conserving the environment.
Respective articles of the 1966 International Covenants regarding the human rights of individuals related to the environment are examples of the predominance of anthropocentric and utilitarian nature in international environmental law. Even the Draft Declaration of Human Rights and the Environment from 1994 does not reference the environment’s right to be conserved. However, as exemplified, the absence of explicitly written rights does not preclude the presence of duties and responsibilities, which are the mediator of rights enforcement (Fisher, 2014). This is an important observation made for all those concerned with the issue of environmental law form.
Finding the right form of effective environmental legislation is a challenge to be overcome by the international community. Although it is admitted that modern environmental legislation is still modeled on prohibitions, there are other tools such as responsibilities that prove to be more effective. In this light, Robert Goodin argues that the most optimal solution is in the form of the regime of shared responsibilities (as cited in Fischer, 2014). This mechanism is not problem-free, considering its relatively broad applicability in the area of international law (Nollkaemper et al., 2020). However, its expansive interpretation can benefit different states, even when the state does not possess the means to preserve the environment. Instead, the state is paid by wealthier countries to decrease its contribution to the environment’s deterioration.
Simultaneously, one should not expect that this regime can occur just by itself, but it requires a relatively strong nation-states willingness. On the one hand, as the example of Australia showcases, the situation might be a bit more complicated than that since there is an observed lessening role of the state in environmental law at the national level (Godden & Peel, 2010). While on the other hand, barely anybody would expect that the state will lose its central role in law-making.
References
Fisher, D. E. (2014). The ethical dilemmas of environmental law. In Australian environmental law: Norms, principles and ru,les (3rd ed, pp. 33-58). Lawbook.
Godden, L., & Peel, J. (2010). Environmental law: Scientific, policy, and regulatory dimensions. Oxford University Press.
Halvorssen, A. M. (2019). Equality among unequals in international environmental law: Differential treatment for developing countries. Routledge.
Nollkaemper, A., D’Aspremont, J., Ahlborn, C., Boutin, B., Nedeski, N., Plakokefalos, I., & Jacobs, D. (2020). Guiding principles on shared responsibility in international law. European Journal of International Law, 31(1), 15–72. Web.