3. EQUITY AND INTERNATIONAL ENVIRONMENTAL LAW: FROM
3.3 Developing countries and the Stockholm Declaration
72 priorities of states of the global South, the existing imbalance between developed and developing states and the culpability of developed states for environmental damage.
Developing states were unwilling to agree to any commitments which would restrict the exploitation of their environmental resources for developmental purposes. The eradication of poverty and the pursuit of economic development was a bigger priority for developing states, and it defined not only their participation in global environmental law but also their conception of equity and fairness within the system.
Overall, the position of developing states not only reveals the connection between development and the environment, but also highlights the need for justice within any international agreement on the environment. The inequality in the distribution of global wealth implies that states do not have equal economic capacity, and it behoves them to create laws that distribute rights and responsibilities in a manner that does not further entrench these inequalities. Instead, these laws must be targeted at narrowing this gap. As much as possible, these agreements must foster a redistribution of wealth in a manner that ensures that the conditions of those who are worse- off are improved.
At the end of the Conference, three texts of significant importance were adopted: the Action Plan, the Stockholm Declaration on the Human Environment and the Resolution on Institutional and Financial Arrangements.66 Although these agreements did not have the status of a treaty and none of them expressly used the term ‘equity’, these documents set the pace for the subsequent growth of international environmental law generally and highlighted some of the important inequality questions which became central in the international agreements on climate change. These agreements are, therefore, important markers in understanding the history and development of equity within climate change treaties.
73 within international environmental law jurisprudence. The Declaration, therefore, represents the first attempt to have a methodical approach to international environmental law.68 As will be shown below, the Declaration planted the seed for the introduction, 20 years later, of the principle of equity in the UNFCCC.
3.3.1 Economic development and environmental action
The Declaration captured some of the positions and agitations of developing states with regard to justice within the international legal order governing the environment. Specifically, the argument of developing states with respect to their developmental challenges and its relationship with the environment was captured in the preamble to the Stockholm Declaration.
The Declaration acknowledged:
In the developing countries most of the environmental problems are caused by under-development.
Millions continue to live far below the minimum levels required for a decent human existence, deprived of adequate food and clothing, shelter and education, health and sanitation. Therefore, the developing countries must direct their efforts to development, bearing in mind their priorities and the need to safeguard and improve the environment.69 (Emphasis added).
Principle 9 provides:
Environmental deficiencies generated by the conditions of under-development and natural disasters pose grave problems and can best be remedied by accelerated development through the transfer of substantial quantities of financial and technological assistance as a supplement to the domestic effort of the developing countries and such timely assistance as may be required.70
A joint reading of the preamble and Principle 9 reveals that state parties affirm the connection between economic development and environmental problems in developing states. A state suffering from a low standard of living and inability to provide necessities, such as housing, food, clothing, education, health, etc. will have insufficient capacity to respond to emerging environmental issues. If developing states face unique development challenges that limit their ability to respond to global environmental issues, it becomes necessary that allowances be made for them in the allocation of rights and responsibilities under international environmental law. The Stockholm Declaration takes this vulnerability into account in the development of its
68 Viet Koester ‘From Stockholm to Brundtland’ (1990) 20(1) Environmental Policy & Law 14.
69 Para 4, preamble to the Stockholm Declaration.
70 Principle 9 of the Stockholm Declaration.
74 rules and principles on the human environment and thus sets the tone for the further development of international environmental law.
In creating this link, the Stockholm Declaration recognises the developmental priorities of developing states. It concedes that this group of states must continue to focus on meeting their critical needs like the feeding, housing, schools, medical facilities and sanitary ware. The Declaration gives room for developing states to prioritize economic growth and development.
It is in effect an acknowledgment that global environmental regulation cannot be expected to progress if the needs and concerns of developing states are not taken into account. Without solving the problems of underdevelopment and lack of decent living conditions, an attempt to solve global environmental issues will merely lead to more global injustice.
The need for environmental action not to stand as an impediment to the pursuit of development by developing states was also emphasised in Principle 11 of the Declaration. It provides:
The environmental policies of all States should enhance and not adversely affect the present or future development potential of developing countries, nor should they hamper the attainment of better living conditions for all, and appropriate steps should be taken by States and international organizations with a view to reaching agreement on meeting the possible national and international economic consequences resulting from the application of environmental measures.71
As previously mentioned, developing states have historically borne the brunt of global development and currently suffer huge development deficiencies. It is, therefore, important that environmental policies do not become an additional barrier to their developmental efforts.
Where possible, these policies should be formulated in a way that boosts, rather than impairs, the developmental pursuits of developing states. Where environmental policies have unavoidable economic consequences for developing states, Principle 11 is to the effect that the parties involved must seek for a way to cushion such consequences. An environmental policy must not negatively impact potential of developing states to pursue development whether now or in the future.
Principle 21 also upholds the right of states to make use of resources within their territory in line with national policies and priorities. It provides that states possess ‘the sovereign right to exploit their own resources pursuant to their own environmental policies.’72 This principle,
71 Principle 11 of the Stockholm Declaration.
72 Principle 21 of the Stockholm Declaration.
75 which was advocated by a joint proposal of Brazil, Egypt and Yugoslavia, recognized that the authority of a state to utilise the resources within its territory is one of the basic components of sovereignty.73 It is, therefore, not surprising that the Declaration upheld this right as a way to reassure developing states that they continue to have the freedom to explore their resources in pursuit of economic development. Global environmental protection was not a form of neo- colonialism to keep the global South underdeveloped. This right is, however, subject to the duty to make sure that such exploitation of resources does not harm other states.74
Conclusively, it becomes clear that the Declaration acknowledges the vulnerable position of developing states, their developmental priority, and the need for this to shape and govern the global regulation of the environment. The Declaration leaves intact the right of developing states to utilise their resources for developmental purposes, maintains that global environmental policies must not affect the developmental potentials of these states and where such impacts are unavoidable, parties must reach an agreement on how to cushion such effects.
3.3.2 Financial and technological support
The allocation of financial and technical resources to developing states was another issue of concern contained in the Stockholm Declaration. The preamble to the Declaration affirms that
‘international co-operation is needed in order to raise resources to support the developing states in carrying out their responsibilities in this field.’75 Thus acknowledging the need for global support to aid developing states in the achievement of global environmental objectives.
In furtherance of this, the Declaration provides that considerable amount of financial and technical support be made available to developing states. Principle 9 of the Declaration provides:
Environmental deficiencies generated by the conditions of under-development and natural disasters pose grave problems and can best be remedied by accelerated development through the transfer of substantial quantities of financial and technological assistance as a supplement to the domestic effort of the developing countries and such timely assistance as may be required.76 (Emphasis added).
73 Sohn (n64) 487.
74 Principle 21 of the Stockholm Declaration.
75 Para 7, preamble to the Stockholm Declaration.
76 Principle 9 of the Stockholm Declaration.
76 State parties recognize that the capacity of developing states to pursue economic growth and environmental action is limited by low levels of development. It is therefore necessary that global efforts be geared towards building the capacity of developing states. This can only be done through the provision of technological and financial support. Developing states cannot be expected to undertake environmental action without technological and financial transfer from developed states.
Furthermore, there are additional costs which states envisage will become necessary due to the incorporation of environmental action in development plans. As stated in the Declaration, states must ‘adopt an integrated and co-ordinated approach to their developmental planning so as to ensure that development is compatible with the need to protect and improve environment’.77 Such integrated approach to development would, however, imply additional costs to the developing states.
The Declaration, therefore, goes further to provide that extra international technical and financial support be made available to developing states. This additional support will be used to defray the additional costs incurred in adopting environmentally friendly developmental plans. This ultimately ensures that no additional burden is placed on developing states.
3.3.3 Equity in the Stockholm Declaration
An examination of the Stockholm Declaration reveals an agreement that recognises the inequality between developed and developing states. The Declaration acknowledges the underdevelopment and vulnerable position of developing counties and goes further to highlight the need for those who are better off (developed states) to contribute to ensuring an improvement in the conditions of their developing state counterparts.
Although the Declaration falls short of an express acknowledgement of the injustices of the past, its recognition of the inequality between different groups of states serves as a precursor to the introduction of distributive justice into international law on the environment. The Declaration provides that states who have had the advantage of financial and technological advancement have an obligation to further the advancement of those who are underdeveloped, at least to the extent that such assistance are relevant for environmental protection.
77 Principle 13 of the Stockholm Declaration.
77 The position taken by state parties in the Declaration is akin to the notions of equity as distributive justice. It emphasises the existing inequality in the society and the need for the distribution of rights and responsibilities to be targeted towards a correction of this inequality.
It is a requirement of justice to compensate those who have been deprived of access to basic necessities. And it is towards this end that some of the provisions of the Declaration are targeted: improving the access of developing states to basic necessities by ensuring that they have the opportunity to pursue development.
While the Stockholm Declaration is not a legally binding agreement and consequently possess no binding force, it remains relevant in understanding the development of equity within climate change treaties. It represents one of the first global attempts at codifying the contention between economic development and environmental action on the one hand, and the inequality between developed and developing states on the other hand. The approach adopted under the Declaration toward this contention defined much of the later development of equity within international environmental law broadly speaking, and the international law on climate change specifically.
Even though the word equity was not at the centre of these discussions, and neither equity nor distributive justice was expressly mentioned in the Declaration, it was the beginning of what later culminated in the principle of equity and common but differentiated responsibilities. The Declaration sought a redistribution of resources between poorer states and their rich counterparts. It recognizes that it would be unjust to place the same level of obligations on both groups of states. This differentiation of responsibilities is further necessitated by the historically disadvantaged position of developing states in comparison with developed states. It became apparent by the end of the Stockholm Conference that an international framework on the environment, which did not take into cognisance the developmental needs of developing states would be regarded as inequitable.