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May 162013

Transworld Op-Ed

by Ranabir Samaddar
Director, Calcutta Research Group
May 14, 2013

The anxiety about sustainability first came to the fore after the Second World War, when the euphoria of the victory of liberalism over fascism was mixed with the concern that the world would not be able to withstand another such event of mass slaughter and hitherto unimaginable destruction of resources. The concern was acute because two of the most devastating incidents in the war had been caused by the liberal powers themselves: the Anglo-American bombing of Dresden and the dropping of the atom bomb by the US over two cities of Japan. Then the anxiety increased as for the next three decades the Cold War and nuclear rivalry saw an immense arms build-up with weapons capable of destroying the Earth several times over.

Along with this, there was also concern about what came to be known as “gigantism” – the reckless adulation of grand size (big cars, big avenues, big houses, big institutions, big dams, big projects, big technologies) – and the consequent massive deployment of resources towards achieving and maintaining size. Sustainability thus became associated with the search for small constellations. As the saying goes, small is beautiful. In this context, discussions about sustainability began revolving around issues like environmental protection and food security. The rhetoric was built on the language of rights. The current stalemate in reaching a consensus on the extent to which environmental issues can be addressed in terms of individual rights suggests that the language of rights cannot take us far and that we must supplement – or at least reinforce – the rights question with the language of justice.

In the debate on sustainability, the economy is the area where the hide-and-seek game between the pursuit of interests and the invocation of the social goes on most starkly. Our Nineteenth Century history of industrialisation speaks only of the conquest of nature, industrial revolution and growth, but not of massive food crises in most of the world beginning with the Irish Famine and the death of millions in countries such as Brazil, Egypt, India, Burma, Thailand and China. This was the age of the discovery of the market, whose “hidden hand” balanced and settled everything. Thus the market, along with a Malthusian logic, which was at the core of the governmental ethos of that time, led the industrialising economies to think of how to sustain industrialisation. This was at the cost of the destruction of other economies, as revealed by the history of the El Nino famines and the connected issues of climate change, droughts, famines, and deaths. This history is an indirect admission of the fact that environmental sustainability is more a question of justice than an issue of science, a matter of ethical choice rather than one of taking the scientific path.

The ethical choice must qualify any inherent claim to be scientific, whether by drug manufacturing companies, pesticide producing firms, or junk food sellers. We are witnesses to a seemingly endless empire of commodification that impacts on our life’s capacity to continue. In this context, the environment, which is an endowment – or the highest form of commons, such as air, water, language, culture, and so on – is turned into a resource. Hence, the debate on the resource crunch, the resource crisis, and resource wars.

What is the way out of this closed condition? We have to first note that while economics is still groping in terms of its own disciplinary framework to cope with the challenge of sustainability, law has started laying some of the groundwork to make sustainability cut across disciplinary and professional boundaries. In several countries, such as India, there have been public discourses and movements on issues relating to natural resource exploitation, inequitable growth, regional imbalances, demographic pressures, community knowledge, and the harness of technology, which are leading to legal decisions through court judgements, and in some cases enactments such as India’s Biodiversity Act of 2002. Pollution has been among the biggest issues in recent times, and the resistance of indigenous communities to the destruction of forests and grasslands has led to decisions regarding resource regulation. Legal centralisation cannot pave the way to sustainability, while legal pluralism and diversification can respond better to the aim of preserving the commons. But while law is admittedly a major instrument in the quest for sustainability, we still lack a rich jurisprudence with implementing teeth. The power of the commercial interests is enormous.

Given the fact then that appropriate law is still in the making, and economics as discipline is least attuned to the dynamics of sustainability, as a primary step we can at least plead for the acceptance of four principles relating to environmental justice:

(a) First, we must critically investigate the historical conditions of sustainability, which point to the possibilities and limits of our governance policies regarding environmental sustainability.

(b) We must study responsibility in terms of ethics – that is to say, responsibility for the future, not in the sense of dictating what the future will be, but of happily co-existing with the future and its possibilities.

(c) This brings in the issue of dialogue, because responsibility means commitment to the existence of the other: other ways of life, other generations, other species, other resources, others’ claim to life as well.

(d) Finally, the radical reorientation we are speaking of is possible only when we put the issue of sustainability in the framework of justice, which would mean reconciling claims, recognising past abuses, determining standards of fairness, and guaranteeing against the recurrence of injustices.

Apr 242013

Transworld Paper No.21

by Emanuela Orlando

In the course of the past four decades, since the adoption of the First Environmental Programme in 1973, EU environmental policy and legislation have expanded dramatically, and gradually become one of the main EU areas of intervention. While such expansion has not been always unproblematic, EU environmental policy represents one of the most interesting areas from the point of view of innovative legal tools and inclusive governance approaches, as well as one of the policy sectors where the process of “europeanisation” of national legislation is most apparent. The present paper illustrates the evolution of EU policy and legislation in the field of environmental protection from the early seventies until nowadays. It combines an examination of the historical evolution of EU environmental policy from an institutional and constitutional perspective with analysis of the key aspects and main trends of EU environmental governance and law-making. In this context, this contribution also highlights the EU approach to the multilayered dimension of environmental governance, both from the internal perspective of the dynamic relationship between EU and the member states, and in a global context.


Apr 082013

Transworld Paper No.17

by Kati Kulovesi and Marise Cremona

While the European Union (EU) seeks to play an active role in global environmental governance, its special nature as an international actor has important implications for its external environmental policies and its participation in international environmental cooperation. The Union may act only when there is a legal basis for such action in its founding Treaties. The Union’s external competence is therefore affected by the internal division of powers between the EU and its member states in a particular field. Under most multilateral environmental agreements (MEAs), the Union participates alongside its member states, with complex implications for both EU and international law. The duty of loyal cooperation and the principle of unity of the Union’s international representation have important implications for the EU and its member states, requiring the formation of common positions in decision-making structures established by MEAs and limiting the scope of the member states’ independent international action. The issue of who speaks for the EU and its member states has also become a matter of contention. This sometimes difficult legal and political internal dynamic, while arising out of obligations of unity, can have negative consequences for the EU’s international environmental action.