Environmental Justice in the Global South

The Cambridge Handbook of Environmental Justice and Sustainable Development (Cambridge University Press, forthcoming 2021) edited by Sumudu A. Atapattu, Carmen G. Gonzalez & Sara L. Seck Environmental Justice in the Global South Usha Natarajan  1. INTRODUCTION The concept of environmental justice has its origins in the United States in the 1980s when it was used to describe the unequal impact of industrial pollution on racial minorities. From these beginnings, over the last four decades the idea has blossomed, expanding both geographically and historically to encompass variegated environmental struggles worldwide, including those from centuries past. Why does this concept have such resonance and wherein lies its usefulness? This chapter examines these questions from the point of view of the Global South. I begin with some background on what is meant by the Global South and by environmental justice. I then use the customary four-pillar formulation of environmental justice – distributive justice, procedural justice, corrective justice, and social justice – to explain the different theoretical and practical ways in which this concept is helpful for understanding environmental struggles across the Global South. 2. BACKGROUND We are witnessing environmental change unseen in millions of years: The sixth mass extinction of species, the changing climate, the dying oceans and dwindling forests, the spreading deserts, the increasing toxicity of our water, air and soil, and the complex interrelatedness between these phenomena. In attempting to formulate adequate responses, communities, activists, technical experts, academics, as well as law and policymakers, are increasingly turning to the notion of environmental justice for guidance. Before examining reasons for such a turn, it is worth stating that I am among those making this move, and this Chapter is self-reflexive participation in constructing what environmental justice means for the Global South. I am an international law scholar and practitioner in the Global South and part of the Third World Approaches to International Law (TWAIL) movement.1 My assessment of environmental justice  1 Usha Natarajan is Edward Said Fellow, Columbia University; Global South Visiting Scholar, University of British Columbia; and Senior Fellow, Melbourne Law School. TWAIL is a network of international law scholars and practitioners committed to the interests of the peoples of the Global South. For its political commitments see B.S. Chimni, “Third World Approaches to International Natarajan  Environmental Justice in the Global South is colored by my location, profession, and politics. I judge the utility of environmental justice against the backdrop of how effective international law has heretofore been for addressing the environmental concerns of the Global South. My comfort in using the term “Global South” stems from my participation in the TWAIL movement, which is a network of international law scholars and practitioners committed to solidarity along these lines.2 The term “Global South” can be used interchangeably with “lessdeveloped,” “developing,” “underdeveloped,” or indeed “Third World,” to refer to states and peoples marginalized in international society – lagging behind in terms of prosperity and power.3 States of the Global South have sometimes formed political coalitions, such as the Group of 77 (G-77) and the Non-Aligned Movement,4 and peoples of the South have also been loosely linked at various times by social movements of protest by the poor against the rich. 5 While the term Global South has more contemporary purchase, its Cold War antecedent was the term “Third World.” Nyerère described the Third World as the majority of the world’s population, possessing the largest part of certain important raw materials, and yet having no control and hardly any influence over the manner in which nations of the world arrange their economic affairs.6 By the late twentieth century, when many Third World states such as South Korea, Taiwan, Hong Kong, and Singapore successfully developed export-oriented processes of industrialization, analysts declared that the Third World no longer existed.7 Rapid economic growth in Brazil, China, India, Indonesia, Russia, South Africa, and other emerging economies, raises similar issues today for the term Global South. When using broad and crosscutting terms such as Third World or Global South, there is a risk of impreciseness and elision of the growing diversity amongst developing states and the fracturing and reshaping of alliances between them. Thus, scholars have critiqued the risk of camouflaging the differences between and within nations.8 Hardt and Negri famously declared that globalization had made the Third World obsolete as there is a First World in every Third World, and a Third in the First, and the Second almost nowhere at all.9 2 3 4 5 6 7 8 9 Law: A Manifesto” (2006) 8 International Community Law Review 3. For a description see J.T. Gathii, “TWAIL: A Brief History of its Origins, its Decentralized Network and Tentative Bibliography” (2011) 3 Trade, Law and Development 26. The subsequent five paragraphs are abridged from U. Natarajan, “TWAIL and the Environment” in A. Philippopoulos-Mihalopoulos & V. Brooks (eds.), Research Methods in Environmental Law: A Handbook (Cheltenham: Edward Elgar, 2017). K. Mickelson, “Rhetoric and Rage: Third World Voices in International Legal Discourse” (1998) 16 Wisconsin International Law Journal 353 at 356. The G-77 was formed on 15 June 1964 through the Joint Declaration of the 77 Countries issued at the United Nations Conference on Trade and Development (UNCTAD). The Non-Aligned Movement was founded in Belgrade in 1961 to advocate a middle course for states of the developing world between the Western and Eastern blocs during the Cold War. See further http://www.g77.org/ and http://csstc.org/. Mickelson, note 3, p. 357. J. Nyerère, “South-South Opinion” in A. Gauhar (ed.), The Third World Strategy: Economic and Political Cohesion in the South (Westport: Praeger, 1984), pp. 9-10. N. Harris, The End of the Third World (Harmondsworth: Penguin, 1987); M.T. Berger, “End of the Third World” (1994) 15 Third World Quarterly 257; M. Berger, “After the Third World? History, Destiny and the Fate of Third Worldism” (2004) 25 Third World Quarterly 9. Ibid. M. Hardt and A. Negri, Empire (Cambridge: Harvard University Press, 2000), pp. 263-64. 2 Natarajan  Environmental Justice in the Global South These challenges are not new. Postcolonial scholars have always negotiated them. In the 1980s, Anand observed of the Third World that:10 They cover a whole range of economic, political and cultural diversities, even antagonisms. The family of underdeveloped countries include both producers and consumers of energy, importers and exporters of raw materials, nations which can feed their populations as well as those which almost always face the spectre of famine. They differ among themselves so greatly in economic promise that they are sometimes divided into ‘third’, ‘fourth’ and ‘fifth’ worlds … In fact, for many purposes it is more misleading than illuminating to lump together countries of Asia, Africa and Latin America. And yet, for a variety of purposes these countries perceive themselves as a group, a perception made more impressive because it overcomes an underlying, undeniable diversity. Many decades after Anand helped pioneer Third World scholarship in international law, his observations on the self-identified and self-constituted nature of the Third World remain insightful. Terms such as Third World or Global South retain their political and scholarly purchase today because of their enduring relevance for peoples across geographical, social, and cultural divides. People everywhere continue to be drawn together by shared concerns for the poorest and most vulnerable peoples in their societies, by common struggles against transnational and systemic patterns of domination and subordination, and by finding a usefulness in working together. The utility of terms such as Global South lie in the way they are employed by postcolonial scholars, to breakdown dichotomies rather than to reinforce them. In this chapter, the term Global South is used to help reveal that there are no rigid boundaries between the South and North, colonized and colonizer, or between Third World and First. The identities of victim and victor were rarely pure in colonial times, and the postcolonial world has seen a continuation of mutual cultural transference and hybridity of identities.11 Rather than asserting an inflexible boundary between North and South, my intent is to break down this boundary and contest any claims to the stability of meaning and identity.12 Postcolonial scholars understand colonialism as a project of cultural control. Colonized societies were classified and labelled. New distinctions and oppositions came into being between colonizers and colonized, Europe and Asia, Europe and Africa, modern and primitive, West and East, and North and South.13 One of the purposes of a Chapter such as this is to complicate contemporary understandings of the South and North, rejecting simplistic characterizations of non-Western and Western states and peoples. After all, as Baxi accurately observed, long before Hardt and Negri identified globalization as scrambling the composition of the Three Worlds, scrambling had already occurred through centuries of colonialism, settlement colonies, enforced diasporas of laboring classes, slavery, slave-like labor, and forced relocations.14 10 11 12 13 14 R.P. Anand, International Law and the Developing Countries: Confrontation or Cooperation? (Dordrecht: Martinus Nijhoff, 1987), p. 120 (emphasis added). L. Gandhi, Postcolonial Theory: A Critical Introduction (New York: Columbia University Press, 1998), pp. 126, 131, 137. A. Riles, “Aspiration and Control: International Legal Rhetoric and the Essentialisation of Culture” (1993) 106 Harvard Law Review 723; D. Otto, “Subalternity and International Law: The Problems of Global Community and the Incommensurability of Difference” (1996) 5 Social and Legal Studies 337. N. Dirks, Castes of Mind: Colonialism and the Making of Modern India (Princeton: Princeton University Press, 2001), p. 9. Hardt et al., note 9; U. Baxi, “What May the ‘Third World’ Expect from International Law?” (2006) 27 Third World Quarterly 713 at 717. 3 Natarajan  Environmental Justice in the Global South One of the strengths of a term such as Global South is its flexible porous meaning, which enables reference to transnational underclasses, movements, and solidarities that are in a process of continual flux geographically. While the term Global South may be problematic in some ways, the alternatives are too, and the concept is used in this chapter because of its usefulness for counter-hegemonic knowledge production. It provides what Darby calls a “conceptual tripwire against colonizing tendencies of much dominant discourse.”15 The term environmental justice has a more precise origin. It was a movement that gained prominence in the United States in the 1980s for its organized opposition to situating hazardous waste facilities and polluting industries in poor, minority communities.16 Environmental justice was a response to environmental racism – the disproportionate impact of environmental hazards on people of color – and beyond race environmental justice also encompasses issues of class, gender, other intersectional markers of identity.17 As the US government started to engage with some of the movement’s demands, activists became wary of cooption of their message, and clarified that they do not accept a mere redistribution of environmental harms but rather demand their abolition.18 Advocates identified four aspects of environmental injustice experienced by historically marginalized communities. First, distributive injustice arising from disproportionate exposure to environmental hazards and limited access to environmental services. Second, procedural injustice caused by exclusion from environmental decision-making. Third, corrective injustice due to inadequate enforcement of environmental legislation and inadequate redress for harm done. Fourth, social injustice because environmental degradation is inextricably intertwined with deeper structural ills such as poverty and racism.19 Given its origins in the heartlands of the long-industrialized United States with its particularities of race and class, at first glance it may seem surprising that the concept of environmental justice has been so readily taken up across the Global South. However, the connections become evident when considering the US development pathway and its indivisibility from the exploitation of labor and resources worldwide. US particularities of race and class were produced by centuries of settler colonialism, genocide of Indigenous populations, slavery and forced labor, apartheid, access to labor and resources across the globe, and environmental degradation. Indeed, when the People of Color Environmental Leadership Summit formulated their Principles of Environmental Justice in 1991, they explicitly acknowledged this historical and geographical link, stating that they are20 gathered together … to build a national and international movement of all peoples of color to fight the destruction and taking of our lands and communities … to respect and celebrate each of our cultures, languages and beliefs about the natural world and our roles in healing ourselves … and, to secure our political, economic and cultural liberation that has been denied for over 500 years of colonization and oppression, resulting in the poisoning of our communities and land and the genocide of our peoples … 15 16 17 18 19 20 P. Darby, “Pursuing the Political: A Postcolonial Rethinking of Relations International” (2004) 33 Millennium: Journal of International Studies 1 at 2-3. L.W. Cole and S.R. Foster, From the Ground Up: Environmental Racism and the Rise of the Environmental Justice Movement (New York: New York University Press, 2001), pp. 19–33. Ibid. See also R.W. Collin, “Review of the Legal Literature on Environmental Racism, Environmental Equity, and Environmental Justice” (1994) 9 Journal of Environmental Law and Litigation 121. EJnet.org: Web Resources for Environmental Justice Activists, http://www.ejnet.org/ej/. R.R. Kuehn, “A Taxonomy of Environmental Justice” (2000) 30 Environmental Law Reporter 10681 at 10688. People of Color Environmental Leadership Summit, Principles of Environmental Justice, 24-27 October 1991, Washington DC, https://www.ejnet.org/ej/principles.html (emphasis added) [Principles]. 4 Natarajan  Environmental Justice in the Global South That is to say, environmental justice did not begin only in the United States. It stems from centuries of environmental degradation as a result of colonization and the oppression of communities of color worldwide – communities that carried the burden of Western industrialization through loss of land, livelihood, and even life so that elites could profit. For this reason, environmental justice is an idea well-attuned to the needs of Global South, as both environmental justice and the Global South are ideas based on an awareness of patterns of exploitation that are longstanding and transnational. Environmental struggles have been the ubiquitous and inescapable companion of mass industrialization everywhere. Such efforts did not label themselves environmental justice until recent decades, when communities in the North and later the South adopted this terminology in a variety of grassroot movements; frequently in the context of equitable access to basic resources such as clean water, food, energy and land, as well as in opposition to extractive industries and dams.21 As in the US, environmental justice is used in the South to describe an evaluative framework as well as a social movement when environmental impact on communities is disparate. This duality reflects the praxis of environmental justice and its commitment to evaluation and action. Extending to the Global South a framework developed in the Global North can be tactical as it provides an established paradigm within which research can be conducted. Using accepted concepts, methods, and networks allows Southern voices to participate more easily in knowledge production and advocate for change. However, foreign frameworks may miss, obfuscate, and prevent the articulation of context-specific issues and stifle creativity. The abovementioned Environmental Justice Principles address this risk, declaring that global solidarity is built on the celebration of diverse understandings of nature and different roads to self-healing.22 This approach values and is respectful of difference, inviting movements worldwide to participate in shaping the evolution of the concept of environmental justice.23 Rather than subsuming contradictions and diversities and focusing only on commonalities, environmental justice is defined as multiplicity rather than unity, ensuring its usefulness for subalterns worldwide that may be facing challenges in unique contexts, that may have no or limited parallels in other places and times, and that may be in flux. From this embrace of cultural difference stems the hopefulness of the concept of environmental justice, particularly for international lawyers in the Global South. International law is not a progressive discipline.24 It is deeply conservative, useful to power, and struggles with tackling contemporary environmental challenges.25 In this context, environmental justice provides 21 22 23 24 25 See for example D. Schlosberg, Defining Environmental Justice: Theories, Movements, and Nature (New York: Oxford University Press, 2007); J. Ebbeson and P. Okowa (eds.), Environmental Law and Justice in Context (Cambridge: Cambridge University Press, 2009); and G. Walker, Environmental Justice: Concepts, Evidence and Politics (Basingstoke: Routledge, 2012). Principles, note 20. See for example R.D. Bullard (ed.), The Quest for Environmental Justice: Human Rights and the Politics of Pollution (San Francisco: Sierra Club, 2005); D.V. Carruthers (ed.), Environmental Justice in Latin America: Problems, Promise, and Practice (London: MIT Press, 2008); J.A. Carmin and J. Agyeman (eds.), Environmental Inequalities Beyond Borders: Local Perspectives on Global Injustices (Cambridge: MIT Press, 2011); R. Ako, Environmental Justice in Developing Countries: Perspectives from Africa and Asia-Pacific (Abingdon: Routledge, 2013); and H. Shue, Climate Justice: Vulnerability and Protection (Oxford: Oxford University Press, 2014). See for example J. Linarelli, M.E. Salomon and M. Sornarajah, The Misery of International Law (Oxford: Oxford University Press, 2018); A. Orford, “Scientific Reason and the Discipline of International Law” (2014) 25 European Journal of International Law 369; H. Charlesworth, “International Law: A Discipline of Crisis” (2002) 65 The Modern Law Review 377. For a fuller elaboration of this argument see U. Natarajan and K. Khoday, “Locating Nature: Making and Unmaking International Law” (2014) 27 Leiden Journal of International Law 573. 5 Natarajan  Environmental Justice in the Global South a language of resistance for the disempowered masses to articulate their needs on their own terms within a framework not yet coopted by international lawmakers and their institutions. Through its origins in grassroots activism, environmental justice provides a paradigm that grounds law in social praxis as rooted in particular contexts. The extension of the concept to the transnational and global sphere is occurring in fields such as political ecology, globalization studies, and the study of transnational social movements.26 Edited collections such as this ensure that international law also benefits from this traction. The challenge is to do so while ensuring the concept is not coopted and subsumed within the dominant disciplinary discourse, robbing it of radical and transformative potential. With this in mind, the subsequent sections articulate what environmental justice means in the context of the Global South, considering each of the four aspects of environmental injustice as experienced by marginalized communities: distributive injustice, procedural injustice, corrective injustice, and social injustice. While this chapter identifies transnational structures of environmental injustice, it must be kept in mind that the Global South is most of the world and thus encompasses a staggering diversity of experiences. The nuances of each local situation, with its particular dynamics of gender, sexuality, class, caste, religion, and other intersectional markers of identity, are beyond the scope of this chapter. Instead, this chapter identifies thematic commonalities across the South, providing a conceptual framework for subsequent chapters that undertake context-based analyses through specific case studies. 3. DISTRIBUTIVE JUSTICE Environmental justice within the US analyzes domestic social dynamics that produce racial inequalities in exposure to pollution and access to resources. Similarly, when applied at the global scale, the framework of environmental justice is useful for identifying transnational patterns of environmental winners and losers. Environmental justice traces the global distributive outcomes of environmental goods and bads, and whether/how this distribution correlates with race, culture, class, gender, and other possible markers of inequality internationally. It is worth noting that the divide between the Global South and Global North when it comes to environmental issues is well-known and longstanding.27 Indeed, this division precedes the US environmental justice movement, and has shaped international efforts to tackle environmental problems since the early days of international environmental law in the 1970s. Thus, for communities in the Global South that lack access to ecological services and are on the frontlines of environmental harm, the usefulness of environmental justice is not so much its ability to point out a North-South divide when it comes to the distribution of environmental benefits and harms as this is old news. Rather, environmental justice helps situate and explain their plight within a more useful framework for change. It provides a much-needed alternative given the extant failure of international laws and institutions to address environmental harm. It also shows the intersectionality between various markers of identity and discrimination and, by tracing how this operates transnationally, enables more effective solidarity-building and mobilization for change. Distributive justice is a particularly helpful aspect of environmental justice for international lawyers because our discipline is at an impasse when it comes to addressing environmental challenges. The specialized and fast-growing field of international environmental law has identified the leading environmental challenges of our time – climate change, species extinction, 26 27 G. Walker and H. Bulkeley, “Geographies of Environmental Justice” (2006) 37 Geoforum 655; R. Nixon, Slow Violence and the Environmentalism of the Poor (Cambridge: Harvard University Press, 2011); J. Sze and J.K. London, “Environmental Justice at the Crossroads” (2008) 2 Sociology Compass 1331. See generally S. Alam, S. Atapattu, C. Gonzalez and J. Razzaque, (eds.), International Environmental Law and the Global South (Cambridge: Cambridge University Press, 2015). 6 Natarajan  Environmental Justice in the Global South desertification, deforestation, hazardous wastes, and so on.28 Yet each of these problems have significantly worsened since international environmental laws have attempted to address them. This woeful record is because the rich and powerful are unwilling to embrace economic development models less harmful to nature. However, failure has not prevented the legal specialization from growing. The opposite has occurred, with increasing interest and investment in international environmental law, and a marked increase in jobs, textbooks, research centers, grants, degrees, and a proliferation of technical expertise. This paradox is troubling for those concerned with addressing environmental problems because of the risk that the field may be contributing to these problems rather than solving them. In light of this concern, distributive justice provides a timely and necessary reminder to focus on the reasons why we have not been able to tackle global challenges, as a productive way of moving forward. Gonzalez, a scholar at the vanguard of introducing the discourse of environmental justice to international law, provides this succinct explanation of why environmental justice is grounded in distributional justice: The richest twenty per cent of the world consumes eighty per cent of its natural resources and generates over ninety per cent of its hazardous waste.29 For most of the world, the poorer eighty per cent, their grossly unequal access to natural resources is compounded by also bearing the brunt of the pollution generated by the rich. To briefly illustrate the scale of the inequality, I draw on an example from climate change. The United Kingdom, with a population of 60 million, emits more greenhouse gases than Egypt, Nigeria, Pakistan, and Vietnam, that have a total population of 472 million. The US state of Texas with a population of 23 million has a deeper carbon footprint than the whole of sub-Saharan Africa with total a population of 720 million. And the 19 million people in New York state emit more than the 766 million people living in the 50 least developed countries.30 Inequality at such a scale is not happenstance. It is systemic. Globalized capitalism ensures that the profligate wealthy sectors of society not only stay rich but get richer.31 As environmental burdens are borne by others, there is no immediate incentive for the rich to change their behavior. The poor contribute very little to environmental problems but are on the frontlines of environmental harm because of their vulnerable geographic locations, lack of resources and regulatory capacity to protect themselves, ongoing extraction of their natural resources and labor to fuel an unequal global economy, and a systemic transfer of pollution from the North to the South. A system so unequal in its economic and ecological impact has its origins in European colonialism. Imperial control of land and labor in the colonies was justified not through an ethics of brute force but through the purported superiority of the white race, used to rationalize genocide, slavery, forced labor, apartheid, discrimination, and other types of cruelty in the colonies.32 Imperial centers industrialized through extracting labor and resources from their 28 29 30 31 32 See the International Environmental Agreement Database Project for a catalog of laws: https://iea.uoregon.edu/. C.G. Gonzalez, “Environmental Justice, Human Rights and the Global South” (2015) 13 Santa Clara Journal of International Law 151 at 154. See also C.G. Gonzalez, “Environmental Justice and International Environmental Law” in S. Alam et al. (eds.), Routledge Handbook of International Environmental Law (Abingdon: Routledge, 2013), p. 77. K. Watkins, “Human Development Report 2007/2008 Fighting Climate Change: Human Solidarity in a Divided World,” United Nations Development Programme, 2007). See for example Oxfam, “An Economy for the 99%,” January 2017: In the United States, the bottom 50 per cent has not seen its income grow in the last 30 years, whereas the richest 1 per cent has seen its income grow by 300 per cent. In Vietnam, the richest person earns more in a day than the poorest earns in 10 years. See for example A. Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2007); S.N. Grovogui, Sovereigns, Quasi-Sovereigns and Africans: Race and SelfDetermination in International Law (Minneapolis: University of Minnesota, 1996). 7 Natarajan  Environmental Justice in the Global South colonies, building much of their wealth on the suffering of lands and peoples elsewhere.33 In the postcolonial era, the wealthy and powerful conditioned the independence of their former colonies on a commitment to industrial development. This ensured that, in exchange for selfdetermination, Europe would retain access to the labor and natural resources of the Global South so as to help promote industrialization, but this time with ostensible consent. Peoples in the South gained self-determination through committing to a development model they did not shape – a model inescapably wedded to economic inequality and ecological destruction. As in colonial times, in the postcolonial era Southern elites are incentivized to collaborate with their Northern counterparts through mutual enrichment, to the detriment of transnational laboring classes.34 The environmental justice framework highlights commonalities and historic connections between disempowered communities within rich and poor states. It allows for a reconfigured understanding of where the Global South really is: a transnational and evolving place where solidarity can be built between lower class and caste communities in poor and rich states, Indigenous communities, and poor peoples of color. In comparison with its origins in the US, when extended to the Global South environmental justice is no longer only about disproportionately impacted minority communities. While minority communities in the Global North (such as Indigenous peoples) are disproportionately burdened by environmental degradation (most notably climate change and extractive industries), a focus on distributive injustice globally also reveals the alignment of elite interests across the so-called North-South divide, and the enrichment of the powerful few at the economic and environmental cost of the many. Here too the legacies of colonialism are extant, such as in South Africa where the majority black population bears the burden of deprivation rather than the white minority.35 Additionally, postcolonial states often kept in place or replicated colonial practices, disenfranchising parts of their population to control and exploit their natural resources and labor. For example, in India this is evident in corporate land grabs that disproportionately impact lower caste and Tribal peoples,36 and in China the oppression of religions and ethnic minorities in the mineral rich Western regions of Tibet and Xinjiang;37 in both cases to the benefit and enrichment of metropole elites. 33 34 35 36 37 See for example K. Sanyal, Rethinking Capitalist Development: Primitive Accumulation, Governmentality and Post-Colonial Capitalism (New Delhi: Routledge, 2007); A. Stanziani, Labor on the Fringes of Empire: Voice, Exit and the Law (London: Palgrave-Macmillan, 2018); P. Hudson, Industrial Revolution (London: Edward Arnold, 1992); G.K. Bhambra, “Undoing the Epistemic Disavowal of the Haitian Revolution: A Contribution to Global Social Thought” (2016) 37 Journal of Intercultural Studies 1; M. Badia-Miró, V. Pinilla, and H. Willebald, (eds.), Natural Resources and Economic Growth: Learning from History (New York: Routledge, 2015); W.J. Ashworth, “The British Industrial Revolution and the Ideological Revolution: Science, Neoliberalism and History” (2014) 52 History of Science 178. For a fuller elaboration of this argument, see U. Natarajan, “TWAIL and the Environment: The State of Nature, the Nature of the State, and the Arab Uprisings” (2012) 14 Oregon Review of International Law 177. D.A. McDonald (ed.), Environmental Justice in South Africa (Cape Town: University of Cape Town Press, 2002); H. Stacy, “Environmental Justice and Transformative Law in South Africa and Some Cross-Jurisdictional Notes About Australia, the United States and Canada” (1999) Acta Juridica 36. K. Bahuguna, M. Ramnath, K. Sambhav Shrivastava, R. Mahapatra, M. Suchitra, and A. Chakravartty, “Indigenous people in India and the web of indifference,” August 10, 2016) https://www.downtoearth.org.in/coverage/governance/indigenous-people-in-india-and-the-web-of-indifference55223; G.C. Rath (ed.), Tribal Development in India: The Contemporary Debate (New Delhi: Sage, 2006); D. Kapoor, “Adivasis (Original Dwellers) ‘in the way of’ State-Corporate Development: Development dispossession and learning in social action for land and forests in India” (2009) 44 McGill Journal of Education 55. A. Bhattacharya, “China and its Peripheries: Strategic Significance of Tibet”, Institute of Peace and Conflict Studies Issue Brief #220, May 2013; Special Issue on Xinjiang (2010) 14 Himalayan and Central Asian Studies; K. Mukherjee, “Comparing China’s Contested Borderland Regions: Xinjiang and Tibet” (2015) 6 Millennial Asia 61. 8 Natarajan  Environmental Justice in the Global South A distributive justice focus is crucial for the Global South because of the tendency to shift environmental problems and “solutions” across national borders. For example, the climate change regime promotes market-mechanisms such as the Clean Development Mechanism (CDM), Reducing Emissions from Deforestation and Forest Degradation (REDD), and carbontrading schemes.38 These allow the rich to pay the poor to take environmentally-responsible actions on their behalf so that the rich can maintain their high-consumerist, carbon-intensive lifestyles. Similarly, Western countries responded to the environmental consequences of industrialization by relocating their polluting facilities and exporting their hazardous wastes to developing countries.39 The Newly-Industrialized Countries or NICs such as South Korea and Taiwan likewise relocated their polluting industries to mainland China and Southeast Asia.40 Within states, it is important to bear in mind that the distributive inequities that triggered the environmental justice movement persist four decades later. In both rich and poor countries, environmentally noxious land uses continue to be disproportionately located within poor and marginalized communities.41 These regressive schemes are the natural product of a global economic system that rewards and thrives on exploitative practices. Environmental justice movements call for more than moving problems around, demanding fairness and genuine sustainability, not a shallow, short-term veneer. This approach was evident in many of the environmental justice movements that began in Southeast Asia in the 1970s, preceding the region’s industrialization into Asian Tiger economies. Movements in Indonesia, Philippines, and Thailand were often related to energy issues, in opposition to nuclear power and hydroelectric mega dam projects; as well as against deforestation and marine pollution.42 Local communities fought not only the developmentalism of the state, but the conditionalities of the World Bank and the structural adjustment policies of the International Monetary Fund. Environmental movements included small farmers and fisherfolk, Tribal and Indigenous communities, but also broader mobilization by the poor and working-class masses. They opposed industries that relocated to their communities because the harmful socioeconomic and environmental impact of these industries were no longer welcome in richer areas. They also opposed the export-oriented growth model pursued by the state and encouraged by international financial institutions, as this type of development exploited local natural resources and cheap labor to benefit local elites and pay international debts. The collaboration of central governments with local monopoly capital and transnational capital was opposed by an alliance between the workers, the urban poor, and environmentalists.43 It would be a mistake to conclude that the 38 39 40 41 42 43 All three are endorsed under the UN Framework Convention on Climate Change (UNFCCC), with CDM and carbon trading falling under the flexible and joint-implementation mechanisms of the Kyoto Protocol to the UNFCCC, and REDD+ developed by UNFCCC state parties. K. Kanemoto, D. Moran, M. Lenzen, and A. Geschke, “International trade undermines national emission reduction targets: New evidence from air pollution” (2014) 24 Global Environmental Change 52; A.K. Jorgenson, C. Dick, and M.C. Mahutga, “Foreign Investment Dependence and the Environment: An Ecostructural Approach” (2007) 54 Social Problems 371–394. See generally W. Bello and S. Rosenfeld, Dragons in Distress: Asia’s Miracle Economies in Crisis (San Francisco: Food First, 1990); Y.F. Lee and A.Y. So (eds.), Asia's Environmental Movements: Comparative Perspectives (New York: Armonk, 1999); R.P. Weller and H.H.M. Hsiao, “Culture, Gender and Community in Taiwan’s Environmental Movement” in A. Kalland and G. Persoon (eds.), Environmental Movements in Asia (Richmond: Curzon Press, 1998), p. 83. L.M. Collins, “Security of the person, peace of mind: A precautionary approach to environmental uncertainty” (2013) 4 Journal of Human Rights and the Environment 79; D.N. Scott and A.A. Smith, “Sacrifice Zones in the Green Energy Economy: The ‘New’ Climate Refugees” (2017) 62 McGill Law Journal 861; I. Waldron, There’s Something in the Water: Environmental Racism in Indigenous and Black Communities (Black Point: Fernwood, 2018). Ibid. A. Kalland and G. Persoon (eds.), Environmental Movements in Asia (Richmond: Curzon Press, 1998). 9 Natarajan  Environmental Justice in the Global South subsequent rise of the Asian Tiger economies evidences the failure of such mass movements. On the contrary, environmental movements in the 1970s, 1980s and 1990s not only scuttled many transnational megaprojects, they also contributed to radical political transformation away from dictatorships within many Southeast Asian countries and a deepening of democracy across the region.44 China is an extreme example of the redistribution of environmental ills to the Global South, its lax environmental and labor laws attracting industries from across the Global North as well as from the aforementioned NICs. As a result, the last two decades have seen consistent and massive environmental protests across the nation. The concentration of industries within special economic zones has meant high levels of persistent organic pollutants (POPs) and heavy metals within certain communities. Special zones are often located in coastal areas and waterways, not only destroying ecosystems in these regions, but also exposing large populations clustered in these vulnerable geographic areas to climate change hazards such as super typhoons and sea level rise. China’s unrestrained export-oriented industrialization has united low-wage internal migrant laborers, farmers losing their land, and environmentalists, who together protest a fusion of environmental, land-loss, income, and political injustices.45 The most extreme case of distributive inequality in China is the taking of water and mineral resources from Xinjiang and Tibet to fuel the Chinese economy, which occurs under harsh military oppression, apartheid, settler colonialism by the Han Chinese majority, and cultural genocide, fueling the longstanding resentment of these ethnic communities that demand self-determination.46 In India, environmental justice movements are often connected with public health issues, exemplified in the Bhopal disaster in the 1984 for which some victims still await compensation.47 Demands for transnational corporate accountability have also surfaced in the fight against Coca Cola and Pepsi Cola for overuse and contamination of groundwater;48 against intensive aquaculture industries in coastal states;49 and in the determined struggle by Indian farmers against the use of genetically modified crops or GMOs.50 The anti-dam movement in India is one of the more internationally well-known aspects of local environmental justice struggles. Independent India undertook industrialization with missionary zeal, building dams and new irrigation systems that destroyed traditional water management systems sustained for millennia. In its drive to modernize, services were increasingly centralized, inevitably benefiting urban industrial elites at 44 45 46 47 48 49 50 M. Ford (ed.), Social Activism in Southeast Asia (London: Routledge, 2013). P. Stalley and D. Yang, “An Emerging Environmental Movement in China?” (2006) 186 The China Quarterly 333; L. Xie, Environmental Activism in China (Abingdon: Routledge, 2009); Q. Huan, “Development of the Red-Green Environmental Movement in China: A Preliminary Analysis” (2014) 25 Capitalism Nature Socialism 45; L. Xiea and P. Hob, “Urban Environmentalism and Activists’ Networks in China: The Cases of Xiangfan and Shanghai” (2008) 6 Conservation and Society 141; L. Zhu, “Social Media and Public Diplomacy: Foreign to China’s Environmental Movements” (2013) 4 Exchange: The Journal of Public Diplomacy Art 7. See above note 36. Amnesty International, “Injustice Incorporated: Corporate Abuses and the Human Right to Remedy,” March 7 2014, p. 33; E. Grossman, “ Thirty Years Later, Victims of Bhopal Gas Disaster Are Still Waiting for Justice,” December 3, 2014, http://www.earthisland.org/journal/index.php/articles/entry/thirty_year_later_victims_of_bhopal_gas_disaster_ are_still_waiting_for_just/. P. Parmar, Indigeneity and Legal Pluralism in India: Claims, Histories, Meanings (New York: Cambridge University Press, 2015). Mukul, “Aquaculture Boom: Who Pays?” (1994) 29 Economic and Political Weekly 3075; M. Flaherty and K.C. Samal, Coastal Aquaculture in India: Poverty, Environment and Rural Livelihood (New Delhi: Concept, 2009). G. Thomas and J. De Tavernier, “Farmer-Suicide in India: Debating the Role of Biotechnology” (2017) 8 Life Sciences, Society and Policy 8, T. Yamaguchi, “Controversy over genetically modified crops in India: discursive strategies and social identities of farmers” (2007) 9 Discourse Studies 87. 10 Natarajan  Environmental Justice in the Global South the expense of farmers and the rural and urban poor. The infrastructure for mass industrialization also displaced millions, disproportionately affecting Tribal and lower caste Indians.51 Social movements against dam building and the associated displacement have not only stopped mega dam projects, including those financed by the World Bank and powerful international investors; they have helped deepen Indian democracy and accountability, as was the case in Southeast Asia.52 Tribal movements opposing corporate access to mineral resources are gradually gathering steam not only across India but transnationally, as companies exploit the mineral-rich band across Afghanistan, Pakistan, India, Nepal and Western China.53 The impact of climate change is being felt across South Asia, but particularly in Himalayan areas with the retreat of glaciers and increased stream runoff, and coastal areas with rising sea levels submerging islands and displacing coastal villages.54 Again, as urban elites insulate themselves from climate impacts, those on the frontlines have organized to demand relocation and redress.55 Environmental justice movements across the Global South oppose the global alliance between economic and political elites that obfuscates local needs. US negotiators at environmental summits insist that emerging economies such as Brazil, China, and India play their part in tackling global environmental problems. Brazilian, Chinese, and Indian political elites shoot back with old Third-Worldist arguments that they are entitled to industrialize and pollute as much as Western states.56 Divisions of this kind characterize international environmental lawmaking for the last five decades and disguise transnational unity among elites that profit from the economic and ecological suffering of the masses. The concept of sustainable development, as gradually refined over the last three decades, intends to guide communities towards balanced social, economic, and environmental sustainability. Sadly, the outcome thus far has been a paying of lip service to the concept of sustainable development, while pursuing economic growth based on the exploitation of the poor and of nature.57 A focus on distributive justice is useful to the Global South because it emphasizes an ethics of fairness and equity between and within states. Distributive justice redirects development policymakers from their enduring obsession with transforming the developing world, asking them 51 52 53 54 55 56 57 S. Khagram, Dams and Development: Transnational Struggles for Water and Power (Ithaca: Cornell University Press, 2004); P. Basu, “Scale, Place and Social Movements: Strategies of Resistance Along India’s Narmada River” (2010) 13 Revista NERA 96; A. Roy, The Cost of Living (London: Flamingo, 1999). Ibid. S. Widmalm, Political Tolerance in the Global South: Images of India, Pakistan and Uganda (Abingdon: Routledge, 2016); M. Mandal, The Rise of Revolution: Internal Displacement in Contemporary Nepal (Abingdon: Routledge, 2018); K. Mukherjee, “Comparing China and India’s Disputed Borderland Regions: Xinjiang, Tibet, Kashmir, and the Indian Northeast” (2015) 32 East Asia 173. K. Khoday, “Climate Change and the Right to Development. Himalayan Glacial Melting and the Future of Development on the Tibetan Plateau,” Human Development Occasional Papers, HDOCPA-2007-28, UN Development Programme, 2007; S.S. Mahdi (ed.), Climate Change and Agriculture in India: Impact and Adaptation (Cham: Springer, 2019); K. Jörgensen, A. Mishra, and G.K. Sarangi, “Multi-level climate governance in India: the role of the states in climate action planning and renewable energies” (2015) 12 Journal of Integrative Environmental Sciences 267; N.K. Dubash, Handbook of Climate Change and India: Development, Politics and Governance (Abingdon: Earthscan, 2012); S. Narain, P. Ghosh, N.C. Saxena, J. Parikh, and P. Soni, “Climate Change Perspectives from India,” UN Development Programme India, November 2009. Ibid; A. Srinivas, “Why farmer protests may be the new normal,” July 19, 2018, https://www.livemint.com/Politics/cjW8GmkZpCq8TzSpeDky0H/Why-farmer-protests-may-be-the-newnormal.html. For a discussion of these dynamics, see generally M. Prost and A. T. Camprubi, “Against Fairness? International Environmental Law, Disciplinary Bias, and Pareto Justice” (2012) 25 Leiden Journal of International Law 379. See further R. Gordon, “Unsustainable Development” in S. Alam, S. Atapattu, C. Gonzalez and J. Razzaque, (eds.), International Environmental Law and the Global South (Cambridge: Cambridge University Press, 2015), p. 50. 11 Natarajan  Environmental Justice in the Global South to focus instead on transforming those transnational structures that produce and maintain patterns of inequality and environmental degradation across poor, disempowered, and marginalized communities everywhere. With concepts such as the Anthropocene gaining currency (the Anthropocene denotes the current geological age as a period where human activity is the dominant influence on the environment), distributive justice is even more crucial as a reminder that only a small sector of humanity – the rich – are responsible for environmental damage on a planetary scale. Distributive justice prevents an ahistorical approach to contemporary problems, insisting that ecological debts are paid. It helps contest the trend in international environmental law towards an increasingly technical specialization that obfuscates its own failures. Distributive justice requires a convergence between the ecological footprints of the rich and poor. It places responsibility on those who caused environmental harm and demands they change their behavior. It ensures that those who overconsume and over-pollute are in the limelight and asked to reduce their environmental harm; with their progress scrutinized, classified, and calculated. It reverses international lawyers’ longstanding disciplinary attention to transforming the developing world. Rather than focusing on how to change the poor, distributional justice instead demands that the rich – both states and individuals - reduce their consumption and waste, so that in a planet with finite resources everyone has equal access to environmental benefits and experiences an equal distribution of environmental harms. 4. PROCEDURAL JUSTICE Environmental justice foregrounds the procedures that underlie distributive outcomes to show why certain communities tend to come out on the losing side of environmental decisionmaking. When considering decision-making on the global level, the Global South has not had an equal say in making international laws and institutions. The Western origins of international law, and the continuing socioeconomic, political, and cultural dominance of the West, conditions the participation of non-Western peoples in international law-making in various ways.58 At its most fundamental level, participation in international law-making requires sovereign statehood, the conditions of which were set by Western states. To gain their independence, communities of the Global South underwent significant transformation to meet Western demands for social organization into the Westphalian model. Those entities unwilling or unable to make these capitulations still lack sovereignty today, as evidenced by the plight of most Indigenous and Tribal peoples.59 A law-making process that is predominantly state-centric poses representation challenges for subnational and transnational forms of social organization. Such forms encompass not only Tribal and Indigenous communities but also many social groupings in the Global South whose borders do not correspond to those set by Western powers as a condition of decolonization.60 The sources of international law – treaties, custom, general principles, judicial decisions, and scholarly treatises – were selected by Western states.61 In the postcolonial era, non-Western states can also participate in creating these sources of international law. However, they joined an existing framework they did not shape, which has created two types of procedural problems. First, where they participate in international law-making, they struggle to implement laws that are 58 M. Prost, “Hierarchy and the Sources of International Law: A Critique” (2017) 39 Houston Journal of International Law 285; J.T. Gathii, “Imperialism, Colonialism, and International Law” (2006-2007) 54 Buffalo Law Review 1013; J.T. Gathii, “Assessing Claims of a New Doctrine of Pre-emptive War Under the Doctrine of Sources” (2005) 43 Osgoode Hall Law Journal 67. 59 Anghie, note 32. See generally V. Nesiah, “Placing International Law: White Spaces on a Map” (2003) 16 Leiden Journal of International Law 1; Grovogui, note 32. Statute of the International Court of Justice, Article 38. 60 61 12 Natarajan  Environmental Justice in the Global South in the interests of the Global South. Second, deeper and more troubling, they struggle to express their needs within the confines of a law-making process based on a Western conception of environmentalism. On the first issue, international law is a regime based on sovereign equality, yet the world it purports to govern is increasingly unequal. One of the reasons for this paradox is the difficulties of international law-making by the Global South. From international economic law to human rights,62 from law of the sea to the laws of war,63 from international laws on migration to labor,64 and in the operations of international institutions,65 the unequal influence of rich and powerful entities remains a systemic structural presence, whether states, corporations, NGOs, or individuals. For the purposes of this chapter, I focus on international laws addressing the global environment. International environmental law was a result of the middle classes of the US and Western Europe feeling the effects of industrial pollution on daily life. Western environmentalism gathered momentum in the 1960s and eventually led to international environmental law-making summits, most famously in Stockholm in 1972 and the Rio Earth Summit in 1992.66 From the early days of this specialization, Third World states played a strong role, shaping formative concepts such as sustainable development and the principle of common but differentiated responsibilities for the global environment. These laws require rich states that caused environmental problems to take the lead in finding solutions. They also require rich states to take the lead in providing technical and financial support for environmental solutions because of their capacity to do so. However, rich states have not observed these laws. Indeed, the US has concertedly pushed international environmental law frameworks away from commitment to these foundational principles.67 This is most evident in the climate change regime, in the move away from the defunct Kyoto Protocol’s firm commitments for rich states towards the present voluntary regime under the Paris Agreement. That is to say, despite the close involvement of the Global South in international environmental law-making, the Global North has been able to selectively ignore laws with impunity.68 Additionally, as international environmental law proliferates into an increasingly complex and specialized web of negotiations occurring almost every month, many poor states cannot afford to send large (or sometimes any) delegations or obtain the necessary expertise to represent their interests, fomenting systemic disadvantage over time. The second issue is that the procedures and institutions of international environmental law do not welcome different understandings of environmentalism. Rooted in Western 62 63 64 65 66 67 68 J.T. Gathii and I. Odumosu, “International Economic Law in the Third World” (2009) 11 International Community Law Review 349; M. Fakhri, Sugar and the Making of International Law (Cambridge: Cambridge University Press, 2014); O. Okafor, “Praxis and the International (Human Rights) Law Scholar: Towards the Intensification of TWAILian Dramaturgy” (2016) 33 Windsor Yearbook of Access to Justice 1. S. Ranganathan, Strategically Created Treaty Conflicts and the Politics of International Law (Cambridge: Cambridge University Press, 2014); U. Natarajan, “A Third World Approach to Debating the Legality of the Iraq War” (2007) 9 International Community Law Review 405. B.S. Chimni, “The Geopolitics of Refugee Studies: A View from the South” (1998) 11 Journal of Refugee Studies 350; O. Okafor, “Re-Configuring Non-Refoulement? The Suresh Decision, ‘Security Relativism’, and the International Human Rights Imperative” (2003) 15 International Journal of Refugee Law 30; A.A. Smith, “Migration, Development and Security within Racialised Global Capitalism: Refusing the Balance Game” (2016) 37 Third World Quarterly 2119. B. Rajagopal, International Law from Below (Cambridge: Cambridge University Press, 2003), Anghie, note 32. K. Mickelson, “The Stockholm Conference and the Creation of the North-South Divide in International Law and Policy”, in S. Alam, S. Atapattu, C. Gonzalez and J. Razzaque, (eds.), International Environmental Law and the Global South (Cambridge: Cambridge University Press, 2015), p. 109. For similar trends in human rights law see A. Brysk and G. Shafir (eds.), National Insecurity and Human Rights (Berkley: University of California Press, 2007); and in international trade law see Gonzalez, note 29. This argument is further elaborated in Natarajan et al., note 25. 13 Natarajan  Environmental Justice in the Global South environmentalism, international environmental law remains wedded to a modern, anthropocentric, and obsessively controlling understanding of nature. The “environment” as an object over which we can acquire knowledge and govern reflects a specific type of knowledge production that stems from the European Enlightenment.69 The ability to accumulate scientific knowledge and control over as many aspects of life as possible is a defining trait of Enlightenment thinking and indeed of Western modernity.70 In this sense, when international environmental law identifies the “environment” – that is to say, everything – as an object of governance, international law has made the ultimate modern move.71 By limitlessly extending international law’s scope of operations, international environmental law may make things worse not better, by creating new unbounded arenas for the expansion of governmentality, institutionalism, expertise, and structural violence. A troubling example of such expansion is the tendency to utilize economic incentives for environmental solutions. Environmental lawyers increasingly turn to the “green economy” and “green growth” to solve environmental crises, in hopes that capitalism can simultaneously solve the problems it creates. This contradiction is epitomized in ostensibly virtuous environmentalist calls for more efficient use of natural resources, instead of directly tackling the problem of overconsumption. Such approaches ultimately exacerbate environmental crises through enabling even greater consumption by making more resources available for unlimited (albeit more efficient) usage. Indeed, many so-called green solutions, from biofuels to electric vehicles, from carbon offsets to carbon trading, are creative ways to fuel economic growth but do not stand up to scrutiny when it comes to environmental protection. These approaches provide new markets for globalized capitalists to expand and diversify, enabling their further enrichment and allowing environmentalism itself to be captured by the rich in their untrammeled pursuit of wealth. To understand the environment as something we control, rather than that which controls and gives life to us, is inaccurate. This approach to environmental problems excludes and erodes less hubristic worldviews that could help us find more harmonious ways of living in nature. For instance, many Tribal and Indigenous cultures understand themselves as part of nature, with no clear demarcation between themselves and their environment.72 For cultures that more fully appreciate the interconnection between all things, the anthropocentrism of distinct specializations such as international environmental law and human rights has no meaning. Where does the autonomous person begin and end when they consistently depend on the world around them for air, water and sustenance? A world of sovereign states peopled by autonomous individuals is a comforting disciplinary conceit, allowing us the illusion of order and comprehension.73 But environmental crises confront us with the limits of Western knowledge production and the need for a new paradigm that understands nature and our place in it. For cultures in the Global South to bring their own experiences and knowledge to international law requires procedures and institutions that allow for evolution into radically different modes of social organization and knowledge production. Rather than a specialized technocracy that only those with elite training can access, environmental justice demands an openness to completely different world views and 69 70 71 72 73 G. Rist, The History of Development: From Western Origins to Global Faith (London: Zed Books, 2014), translated by P. Camiller. V. Argyrou, The Logic of Environmentalism: Anthropology, Ecology and Postcoloniality (New York: Berghahn, 2005). Ibid. G.J. Coulthard, Red Skins, White Masks: Rejecting the Colonial Politics of Recognition (Minneapolis: University of Minnesota Press, 2014); J. Borrows, Drawing Out Law: A Spirit’s Guide (Toronto: University of Toronto Press, 2010). On the search for order see further P. Fitzpatrick, Modernism and the Grounds of Law (Cambridge: Cambridge University Press, 2001); Riles, Otto, note 12; Argyrou, note 70. 14 Natarajan  Environmental Justice in the Global South the fundamental transformation this entails. In addition to being fair and just, such an evolution will foster the type of innovative thinking that the discipline desperately needs.74 With a view to disrupting conventional law-making processes, civil society organizations increasingly target treaty-based meetings, such as the annual “Climate COPs” – the Conference of the Parties to the United Nations Framework Convention on Climate Change. Denied equal access and participation in these meetings, civil societies instead set up parallel fora alongside the COPs, such as the Mother Earth Summits in Cochabamba after COP 15 in Copenhagen,75 and alongside COP 20 in Lima.76 Similar points are made effectively and dramatically by endeavors such as the Rights of Nature Tribunals, which purport to determine and enforce an alternative set of laws that protect nature.77 More conventionally, notable scholarly endeavors from the Global South to engage more fully in law-making include the Separate Opinion of Justice Weeramantry in the Gabčíkovo-Nagymaros Project, that infuse into the jurisprudence of the International Court of Justice diverse cultural understandings of sustainable development.78 5. CORRECTIVE JUSTICE Redress for environmental suffering endured transnationally or internationally – whether past, present, or future harm – has proven elusive. Environmental problems are often transboundary in nature and can have global implications. The absence of a consistent global approach that provides remedies encourages irresponsible and unaccountable behavior. Those least to blame suffer most, and those responsible seemingly infinitely defer their day of reckoning. To disrupt this pattern, environmental justice demands corrective justice. Perhaps the extreme case is that of small island developing states, where climate change has destroyed ecosystems, livelihoods, and in some cases entirely engulfed islands under rising seas.79 Island inhabitants did not cause climate change and have no way to prevent it. They cannot survive without assistance. Yet, the rich states that caused climate change, and that have the ability to help with finance, land, and technology, have not done so at any significant level. International climate instruments contemplate addressing loss and damage yet without acknowledgement of liability or promise of compensation,80 and meaningful corrective justice at anything resembling the levels owed or needed has yet to occur. 74 75 76 77 78 79 80 This argument is further elaborated in K. Khoday and U. Natarajan, “Fairness and International Environmental Law from Below: Social Movements and Legal Transformation in India” (2012) 25 Leiden Journal of International Law 415. World People's Conference on Climate Change and the Rights of Mother Earth: Building the People's World Movement for Mother Earth, “Press Release: Bolivia calls for urgent high-level talks on cutting climate pollution,” June 17, 2011, https://pwccc.wordpress.com/. Peoples’ Summit on Climate Change COP20, “For Climate Justice and a World fit to Be Lived in Lima, December 8 to 11, 2014,” September 27, 2014, http://rio20.net/en/iniciativas/peoples%E2%80%99-summit-onclimate-change-cop20/. Rights of Nature Tribunals often occur alongside major international summits: http://therightsofnature.org/rights-of-nature-tribunal/. Separate Opinion of Vice-President Weeramantry, Gabčíkovo-Nagymaros Project (Hungary v Slovakia) [1997] ICJ Rep 7. S. Albert, A. Grinham, J. Blythell, A. Olds, A. Schwartz, K. Abernathy, K. Aranani, M. Sirikolo, C. Watoto, N. Duke, J. McKenzie, C. Roelfsema, L. Liggins, E. Brokovich, O. Pantos, J. Oeta, B. Gibbes, “Building Social and Ecological Resilience to Climate Change in Roviana, Solomon Islands,” Final Report to Department of Climate Change and Energy Efficiency, Australian Government, University of Queensland School of Civil Engineering, WWF, The World Fish Center, December 23 2010 – March 30, 2012. UNFCCC COP 18 in Doha established a Loss and Damage plan that was consolidated during UNFCCC COP 19 into the Warsaw International Mechanism for Loss and Damage. UN Framework Convention on Climate Change, Paris Agreement, 12 December 2015, UN Doc. FCCC/CP/2015/L9/Rev.1, Art. 8, paras. 48-52. 15 Natarajan  Environmental Justice in the Global South Corrective justice in situations such as the one described above for small island states cannot be merely monetary. The loss of entire states cannot be corrected with just financial support. Rather, they require the restoration of self-determination, independence, and dignity. Beyond the stark predicament of small island developing states, displacement from environmental change is widespread. While these gradual movements are not always noticed, they are massive and protracted. The median projection is that approximately 200 million people are being displaced by climate change.81 This number does not include those displaced by other forms of environmental degradation such as non-climate related cases of desertification, deforestation, pollution, and development-induced displacement. While monetary remedy compensates to a limited extent, in the long term this phenomenon reconfigures our planet’s habitable zones. In the past, people (and other animals) have adapted to climate change by moving. The difficulty today is that rich states do not allow people to move freely even at times of great peril. Currently, most rich states are strengthening border controls.82 Corrective justice for environmentally and developmentally-induced displacement caused by rich states could include a requirement that displaced populations be welcomed into the territories of responsible states.83 This would not only ensure that states take responsibility for their transboundary actions but provides displaced persons the opportunity to establish anew a dignified and sustainable life. Previous sections explain the ecological debt the Global North owes the Global South for centuries of plundering its resources and labor, dumping waste, and destroying its natural and cultural heritage. Northern development models premised on infinite economic growth and accumulation of wealth through control and exploitation of nature were universalized through international laws and institutions, destroying more sustainable ways of life.84 Reparations were never provided to the Global South for colonialism, genocide, slavery, apartheid, and other destructive practices. Instead, upon decolonization, the South was blamed for its own underdevelopment and asked to “catch up” to richer states, although the violent and exploitative means by which the Global North had developed were forbidden to the South.85 Environmental justice calls for a change from the unaccountable and irresponsible patterns of the past in international relations through providing remedies for environmental harms. It is a general principle of international law – a legal principle shared by all legal systems of the world – that reparation be made for harm done.86 The operability of this principle for transboundary environmental harm was famously confirmed in the Trail Smelter Case.87 It is also codified and expanded in the International Law Commission’s Draft Articles of State Responsibility and Principles on the Allocation of Loss in the Case of Transboundary Harm 81 82 83 84 85 86 87 P. Alston, Climate change and poverty: Report of the Special Rapporteur on extreme poverty and human rights, 25 June 2019, UN Doc. A/HRC/41/39, p. 5; O. Brown, “Climate Change and Forced Migration: Observations, Projections and Implications,” Human Development Report 2007/2008, Office Occasional Paper, UN Development Programme, 2008. M. Vargas, “Globalisation du contrôle des frontières et résistance des peuples” (2018) 139 France Amerique Latine 27; D.S. Massey, J. Durand, and K.A. Pren, “Why Border Enforcement Backfired” (2016) 121 American Journal of Sociology 155; I. Angelescu and F. Trauner, “10,000 Border Guards for Frontex: Why the EY risks conflated expectations,” European Policy Center, European Migration and Diversity Programme, 21 September 2018; Government Europa, “EU to Triple Border Security, Management, and Migration https://www.governmenteuropa.eu/eu-border-security-managementFunding,” June 12, 2018, migration/88377/. Indeed, the UN Framework Convention on Climate Change in Article 4 calls upon developed countries to help developing countries adapt to climate change. Natarajan, note 34. Rist, note 69; Anghie, note 32. Chorzow Factory Case (Germany v Poland) (1928) PCIJ Series A No 17. Trail Smelter Arbitration (United States v Canada) (1941) 3 RIAA 1905. 16 Natarajan  Environmental Justice in the Global South Arising Out of Hazardous Activities.88 Thus, demands for corrective justice in the Global South are not an unheard-of innovation, but stem from basic understandings of the rule of law and its applicability to everyone equally. This is most especially necessary in cases where the weak need protection from the careless and irresponsible actions of the strong. Movements focusing on corrective justice are surging, including endeavors at the International Court of Justice,89 the InterAmerican Court of Human Rights,90 and the European Court of Human Rights,91 as well as various domestic jurisdictions.92 Domestically, environmental tribunals have proliferated in India and China and across the Global South to address the fast-growing numbers of disputes.93 While actual redress often remains elusive, demands for corrective justice are easier to articulate within existing legal systems because they use conventional legal arguments, compared with more complex distributive and procedural demands that entail disciplinary upheaval.94 6. SOCIAL JUSTICE The experience of colonialism has meant that in the postcolonial era environmental justice in the Global South remains inextricable from transnational exploitation of labor along the lines of race, gender, class, and caste, among other things. Environmental justice is understood as part of the longstanding social struggles against practices that impoverish the South to empower the North. A high proportion of ecological harm in the Global South is the result of export-oriented production rather than domestic consumption and is related to the unrelenting transnational 88 89 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts , Supplement No 10 (A/56/10), Ch IV E (November 2001); Prevention of Transboundary Harm from Hazardous Activities, Supplement No 10 (A/56/10), Ch IV E (November 2001). For the relationship between the two, see S.L. Seck, “Transnational Business and Environmental Harm: A TWAIL Analysis of Home State Obligations” (2011) 3 Trade, Law & Development 164. International Union for the Conservation of Nature (IUCN), Request for an Advisory Opinion of the International Court of Justice on the Principles of Sustainable Development in View of the Needs of Future Generations, WCC-2016-Res-079-EN (10 September 2016); MOX Plant Arbitration (Ireland v UK) (2003) 23 RIAA 59; Southern Bluefin Tuna Arbitration (Australia v Japan) (2000) 23 RIAA 3; Gabçikovo-Nagymaros Project (Hungary v Slovakia) [1997] ICJ Rep 3; Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] ICJ Rep 14; Whaling in the Antarctic (Australia v Japan) [2014] ICJ Rep 226; see generally T. Stephens, International Courts and Environmental Protection (Cambridge: Cambridge University Press, 2009). 90 91 92 93 94 Environment and Human Rights, Inter-American Court of Human Rights Advisory Opinion OC-23/18, (ser A) No 23 (15 November 2017); S. Thériault, “Environmental justice and the Inter-American Court of Human Rights” in A. Grear and L. Kotzé (eds.), Research Handbook on Human Rights and the Environment (Cheltenham: Edward Elgar, 2015), p. 309. O. Pedersen, “The European Court of Human Rights and International Environmental Law” in J.H. Knox and R. Pejan (eds.), The Human Right to a Healthy Environment (Cambridge: Cambridge University Press, 2018). Massachusetts v EPA (2007) 549 US 497; American Electric Power v Connecticut (2011) 564 US 410; Kivalina v Exxon Mobil (2012) 696 F3d 849; Juliana v United States (2016) WL 183903; Friends of the Earth v Canada [2008] FC 1183; Leghari v Pakistan (2015) WP No 25501; Gbemre v Shell Nigeria [2005] African Human Rights Law Reports 151; Greenpeace New Zealand v Northland Regional Council [2006] NZHC CIV 2006404-004617; Genesis Power v Franklin District Council [2005] NZRMA 541; Urgenda v Netherlands [2015] ECLI:NL:RBDHA:2015:7196. See further United Nations Environment Programme, The Status of Climate Change Litigation: A Global Review (2017). A compendium of climate litigation is maintained by Climate Justice at The Climate Law Database: http://www.climatelaw.org/. G.N. Gill, “Environmental Justice in India: The National Green Tribunal and Expert Members” (2015) Transnational Environmental Law 1; R.E. Stern, “The Political Logic of China’s New Environmental Courts” (2014) 72 The China Journal 53. While allowing for an articulation of corrective justice demands, most laws remain unhelpful for providing actual redress because, among other things, they have not evolved to encompass new challenges such as climate change. For instance, state responsibility principles do not encompass collective liability, adequately account for climate change causality, or adequately incorporate the polluter pays principle. 17 Natarajan  Environmental Justice in the Global South corporate quest for natural resources and labor in the South.95 As in the US, communities at the frontlines of environmental harm in the Global South are often those most impoverished, marginalized, politically disenfranchised, and treated as expendable in the endless quest for economic growth.96 People in such situations have no choice but to accept risks of pollution, toxicity, and other environmental harms. Serious environmental hazards may be known but may not seem immediate. Communities beset by a multitude of harrowing problems may perceive economic needs as a more immediate priority and easier to organize around. Complex latent environmental risks may seem like “luxury” concerns or else too difficult to address, provoking denial or hopelessness. To overcome such systemic barriers to action, environmental justice provides an understanding of economic and ecological concerns as interlinked and best addressed together. Environmental justice emphasizes the inextricability of our ecological and economic choices, an emphasis particularly crucial given the growth of the so-called green economy. Domestic and international laws and policies overly rely on economic incentives to solve environmental problems, lauding the potential that environmental challenges provide for economic growth, whether through trading systems that allow rich states to pay poor states to offset their emissions; through more energy efficient homes, transport, construction, and green consumerism; or more cynically through disaster economies of climate insurance and reconstruction. While each of these endeavors provides short term benefit, in the long term they are harmful to the global environment; and together they point to our inability or unwillingness to think outside the confines of consumer capitalism. Offsetting schemes exacerbate inequality because only the rich can benefit from them. Energy efficiency is unhelpful when consumption grows at a rate that uses all available energy and still demands more. Disaster economies are symptomatic of an economic system so self-destructive that it profits from its own decay. Scott and Smith point to how the power dynamics of the green economy may reproduce or proliferate the “sacrifice zones” of the fossil fuel economy.97 Environmental justice reminds us that an economic system that causes global inequality and environmental destruction cannot be relied upon to solve either of these problems and, most importantly, systemic change requires addressing both these concerns together. Environmental consciousness across the South has a long, rich, and varied history and for some Southern communities, including many Tribal and Indigenous communities, there is no distinction between social, economic, and environmental concerns.98 For instance, when Tribal and Indigenous communities resist mining and oil companies,99 and transnational agrarian and peasant movements oppose trade policies,100 their concerns are holistic, effortlessly connecting cultural, livelihood, and environmental matters. Worldviews that do not separate ecology and economy are unamenable to capitalism and, while they face an existential threat, such alternatives provide hope for imagining post-capitalist life. 95 96 97 98 99 100 W.E. Rees and L. Westra, “When Consumption Does Violence” in J. Agyeman, R.D. Bullard, and B. Evans, (eds.), Just Sustainabilities (Cambridge: MIT Press, 2003), p. 99. J. Klugman, “Human Development Report 2011: Sustainability and Equity: A Better Future for All,” United Nations Development Programme, 2011. Scott et al., note 41. Note 72. A. Chandrashekhar, “The Anatomy of a Fake Surrender: A Movement Against Bauxite Mining in Odisha’s Niyamgiri Hills and the State's Efforts to Circumvent It,” August 4, 2017, https://caravanmagazine.in/vantage/odisha-bauxite-mining-fake-surrender-niyamgiri; A. George, “Claiming Niyamgiri: the Dongria Kondh’s Struggle against Vedanta,” December 18, 2014, https://www.ritimo.org/Claiming-Niyamgiri-the-Dongria-Kondh-s-Struggle-against-Vedanta. See La Via Campesina: International Peasant’s Movement, https://viacampesina.org/en/. 18 Natarajan  Environmental Justice in the Global South 7. CONCLUSION Environmental justice is helpful to communities in the Global South because it focuses on issues that international law, particularly international environmental law, has failed to address. Through a commitment to distributive justice, environmental justice emphasizes the need for equity and fairness in access to natural resources and exposure to environmental harm. It pushes against the tendency to geographically relocate environmental problems, prioritizing instead fairness and sustainability globally. An emphasis on procedural fairness and equal participation in the law and policymaking process helps infuse ideas from the South into international laws and institutions, allowing for much-needed solutions to global environmental problems from outside Western environmentalism. Corrective justice fosters a rule of law culture in international relations, where those who cause harm take responsibility for providing the remedy. Lastly, social justice is a reminder that environmental harm in subaltern communities is inextricable from the socioeconomic processes that construct their subalternity, and requires holistic solutions. Environmental justice is a social movement as well as a scholarly field and this bipartite nature presents some challenges. Disciplines such as international law, which are conservative in nature and useful to the powerful, can hollow revolutionary ideas into insipid and depoliticized shells. The relatively fast conceptual uptake of environmental justice globally has occurred among scholarly elites as well as civil society organizations, but this does not necessarily reflect synchronicity and collaboration between the two groups. To fulfill the emancipatory potential of environmental justice, scholarly elites need to reflect the experiences of subaltern communities, rather than appropriate them as cultural capital in international law-making and research forums. The commitment of environmental justice to social praxis requires attentiveness to the distributive, procedural, corrective, and social consequences of our habitual operations as international lawyers and scholars, and a commitment to everyday changes towards a radical restructuring of knowledge production and fearless embrace of difference. Through resisting the disciplinary tendency towards universalization and welcoming a variety of cultural inflections, environmental justice can remain a language of resistance that enables us to build solidarity and effect change globally. 19