Globalisation and the Quest for Social and Environmental Justice

The Relevance of International Law in an Evolving World Order

Shawkat Alam, Natalie Klein, Juliette Overland

• Publisher: Routledge
• Year: 2010
• ISBN:
  9781136866951
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

There are few topics as controversial as globalisation. It is meant to bring economic growth and solve a range of social, cultural and humanitarian problems. However, there are significant debates in relation to the extent that the reality of globalisation reflects this idealized vision. In particular, globalisation has produced a highly interdependent world, rendering state boundaries meaningless and challenging the ideology and limits of certain areas of international law. This book will provide the opportunity to address some of the multifaceted issues provoked by the issue of globalisation.

The book is an exploration of the intricate nexus that emerges as a result of globalisation, inextricably linking together issues of international law, human rights, environmental law and international trade law. Bringing together a number of experts in the field, the book focuses on the areas of social justice and environmental justice, and explores the links that exists between the two and the effect of globalisation on these areas. A variety of topics are addressed throughout the chapters of this book – including biodiversity, the law of the sea, biotechnology, child labour, the rights of women, corporate social responsibility, terrorism and counter-terrorism, water resources, intellectual property rights and the role of non-government organisations. As globalisation has many facets and actors, the contributions to the book engage with interdisciplinary research to deal with the various challenges identified, and critically explore both the potential of globalisation as a vehicle of sustainable and equitable development.

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Achieving social and environmental justice through the many dimensions of globalisation

An elusive or achievable quest?

Shawkat Alam, Natalie Klein and Juliette Overland

There are few topics as controversial as globalisation. Its very definition is explored, contested, and ever evolving. Globalisation is a multifaceted concept that encompasses the economic dimensions of a global marketplace, the social and intellectual aspects of the information revolution and the political dynamics of a world that is no longer strictly defined by States and their borders.

Ideally, globalisation is meant to bring economic growth and solve a range of social, cultural and humanitarian problems. However, there are significant debates about the extent to which the reality of globalisation reflects this idealised vision. Just as the linkages between people, States and ideas are growing as a result of globalisation, so too are the divisions in the world. Social inequalities between and within States are greater than ever, with the gap between the rich and the poor ever widening. Notions of sustainable development and environmental justice have grown with globalisation, but so too has environmental degradation. Whether globalisation is producing negative or positive results is debated, but one thing seems clear: globalisation is changing the conditions in which people across the world live. In particular, globalisation has produced a highly interdependent world, rendering State boundaries almost meaningless. The spread of information, technology and people across the world, brought about by globalisation, has made the world seem smaller, but also more complex.

The dynamics of international trade have provided a range of benefits, as barriers to trade have been removed and markets rendered increasingly accessible. While some States have been able to utilise this paradigm to their financial advantage, the rules have not favoured all, and some obstacles to economic development appear insurmountable. As a result of this unequal distribution, the majority of the populations in developing and least developed countries continue to live in conditions of poverty and hardship, a situation that is perpetuated by the policies of the International Monetary Fund, the World Bank and the World Trade Organisation (WTO). International trade, spurred on by the forces of globalisation, may not only be assessed in terms of its financial advantages or gains, but must also be considered against social, cultural and environmental concerns that are essential to the fabric of society. In this regard, particular attention must be accorded to addressing international trade and its impact on development, indigenous culture, and intellectual property rights.

If globalisation is to foster sustainable development, attention must be paid to concerns of environmental justice. Tensions between globalisation and environmental justice are clear, with the current climate change debate just one such example. Rising poverty, economic inequalities and the depletion of finite and natural resources have challenged the traditional development paradigm, and shifted the focus to the need to integrate globalisation with the goal of sustainable development. The transboundary nature of many environmental issues requires a global approach, and partnerships between States, civil society and international organisations. Thus globalisation, while contributing to the problem, also needs to be part of the solution.

Securing sustainable development and reconciling competing economic, social, cultural and environmental interests are essential for a view of globalisation that supports environmental and social justice. It has long been recognised that sustainable development extends beyond environmental protection, but the interplay of social interests associated with environmental justice has remained largely ignored. For example, the preservation of traditional knowledge is an issue that is usually framed in terms of social justice; but it is equally a concern of environmental justice as well, as the management of traditional knowledge is key to environmental sustainability. Likewise, the exploitation of natural resources, especially in developing countries, is also an issue of environmental and social justice. Only by promoting and protecting social justice can the aims of environmental justice be realised, and likewise a healthy environment is a necessary condition for the realisation of social justice.

Assessments of globalisation and its impacts on environmental and social justice must also account for myriad actors who are playing an increasingly influential role in policy and decision-making. The burgeoning role of civil society in international issues is another result of globalisation. This role has been enhanced by technological development, the information revolution and the changing nature of international law, in which the State is no longer the sole actor. Greater social awareness and the influence of non-governmental organisations (NGOs) are certainly to be counted among the positive benefits of globalisation. However, the increasing role of other civil society actors, and particularly transnational corporations (TNCs), is more disputed, as they have produced both positive and negative consequences for developing States. These non-State actors have brought greater economic activity, foreign investment and other conditions necessary for improving standards of living. However, with this activity there has also been increased environmental damage, as well as unaddressed social and cultural consequences. The transnational nature of these actions has brought some of these actors a large degree of impunity.

The complicated interaction of human rights, international trade and development particularly confronts matters of social justice. Does globalisation have a human face? The effects of unfettered globalisation on international human rights are numerous, and pose serious difficulties for international human rights law. There have been many instances where the forces of globalisation have led to human rights violations, such as child labour, slavery, unfair rates of pay, inadequate access to pharmaceutical drugs and the imposition of discriminatory workplace practices. Thus economic growth can come at the cost of social growth. Yet trade and globalisation are also seen as key to producing improvements in the lives of the disenfranchised, increasing standards of living, promoting sustainable development and protecting economic, social and cultural rights. The problem is that, as of yet, the expected benefits of globalisation are not being realised due to a range of limiting factors.

While its effectiveness and relevance may be questioned, there is an important role for international law in addressing the forces of globalisation. Up until very recently, international trade law, international environmental law and international human rights law operated in almost complete isolation from one another. The realities of globalisation have forced a re-evaluation of this approach. However, the relationship between the international institutions of these branches still remains uncertain and largely undefined. Thus, while rhetoric has increasingly recognised the interconnections of social, economic and environmental justice, concrete action remains lacking.

These interconnections may be easily demonstrated. Unabated economic development can lead to environmental degradation – in both the short and the long term. However, lack of economic development means that countries may lack the financial and technical capacity to address environmental concerns. Poverty itself is a major contributor to environmental problems, as it can result in unsustainable practices, pollution, mass migration and overexploitation of natural and finite resources. Furthermore, lack of economic development may result in other human rights being infringed, reflected in the abject poverty in which more than a billion people continue to live. Environmental protection is also essential for the provision of human rights – there can be no human rights without concomitant environmental rights and an appreciable standard of living for the world’s citizens.

The imbalances caused by globalisation – and the widening gap between rich and poor, developed and undeveloped – create tensions between environmental, social and economic concerns and priorities. The interconnectivity of the globe means that the effects of unsustainable consumption patterns in the developed world are being most keenly felt by those in developing States. This book brings attention to the delicate balance within which international trade, international human rights law and international environmental law must coexist to fulfil the promises of globalisation. Sustainable development has three pillars – social, environmental and economic – and it is only when the three are united in purpose and approach, in action as well as in word, that positive change can be effected.

This book is an exploration of the intricate nexus that emerges as a result of globalisation, which inextricably links issues of international law, human rights, environmental law and international trade law. It enables a focus on the intersections between international law, international institutions, human rights, sustainable development and the interplay of law, politics and diplomacy in dealing with contemporary domestic and international problems. The book explores both the potential of globalisation as a vehicle of sustainable and equitable development, and the arguments that the benefits of globalisation have not been distributed equally. Contributors to the book critically examine issues of social justice (including children’s and women’s rights), and demonstrate that development must be pursued holistically with due attention given to social consequences of globalisation. Many of the book’s chapters offer suggestions of what is needed to start producing the positive benefits of globalisation by enhancing and utilising the linkages between the three spheres of international law.

The chapter by Lee Godden provides a first examination of the dynamics of globalisation with environmental and social justice, assessing these issues in the context of biodiversity protection. She argues that globalisation, in association with trends towards privatisation and market environmentalism, has precipitated major changes in the paradigms for environmental governance and protection at an international level. Biodiversity protection, once premised very clearly at international law on conserving the unique and special, now operates within paradigms of market mechanism and offsets. Each paradigm potentially offers a re-colonisation of nature that inscribes aspects of earlier patterns of colonisation and its impacts on indigenous communities and local cultures. Godden’s chapter examines the factors productive of change in regulatory structures for biodiversity conservation that have operated in international law, and which have been broadly similar across many nations. The chapter examines these trends and their impacts for biodiversity protection in the light of social and environmental justice.

The effect of international trade on the marine environment comes under scrutiny in Natalie Klein’s chapter. She explores the potential synergies of globalisation with environmental protection. The marine environment has served globalisation well, in terms of facilitating international communication, supporting development through the exploitation of resources and enhancing trade through the vital role of international shipping. The increased activity at sea has inevitably posed risks for the protection and preservation of the marine environment, and international law has sought to provide mechanisms that balance demands of international trade, underpinned by the freedom of navigation, with the needs of the environment. This chapter focuses on one particular dimension of this tension between environmental protection and upholding navigation: the designation of particularly sensitive sea areas through the International Maritime Organisation. The study demonstrates that focused approaches to marine environmental protection may be accommodated with the need for global standards for navigation. Through international law, globalisation may also serve the marine environment.

Kate Miles’s chapter focuses on environmental and social justice in relation to the provision of freshwater services, or ‘blue oil’, under international investment law is the focus. Her analysis highlights the opposing conceptualisations of water held by local communities, who consider access to water as a human right, and by the private sector, which seeks to regulate water as a commodity and thus subject it to market forces and efficiency requirements. This tension forms a backdrop both to the legal issues that must be confronted by States that accept foreign direct investment for the provision of water services, and also to the disputes that arise from investor–State concession contracts. Miles observes that the structures and rules associated with investor–State treaty disputes have proven problematic for social justice in the cases that have challenged State responses to poor investor performance. She proposes legal mechanisms that could be utilised better to promote social and environmental justice in international investment law, and thereby to progress the equitable resolution of water-related investor– State disputes. These mechanisms include the incorporation of new provisions in bilateral investment treaties that embrace sustainable development and may also refer to the protection of the environment and the health and safety of the public. Alternatively, the investor–State contract may address these points specifically, rather than being constrained by stabilisation clauses. Such changes may require a shift in the underlying cultural approach to investment. These reforms are necessary in order to allow for the introduction of socially and environmentally responsible approaches, the promotion of sustainable development, and acknowledgement of access to water as a human right.

Turning from the framework of international investment law to the related issue of international trade, Shawkat Alam examines the relationship between global trade, as a vehicle of economic globalisation, and human rights. He observes that economic globalisation has enormous potential to enable the promotion and protection of human rights, and to directly contribute to the realisation of economic, social and cultural rights. The chapter particularly looks at the impact of WTO Agreements on societal issues and the opportunities that the WTO can offer for human rights by supplying the economic preconditions needed for the realisation of socioeconomic rights. It explores critically the ways in which trade liberalisation has failed to deliver on its promises and the potential of prosperity for all. Alam demonstrates that the costs and benefits of economic globalisation have been unequally distributed, and that the current international trading regime needs significant reform if it is to be mutually supportive of economic and social concerns.

Economic and social concerns also predominate when attention is turned to issues of food security and biotechnology. In Hokkaido Toyako, in 2008, the leaders of the Group of Eight (G8) recognised that tackling the issue of food security and poverty would require a range of mid- to long-term measures that would stimulate world food production and increase investment in agriculture. One of the major issues acknowledged to be impeding progress was European resistance to opening their markets to the products of biotechnology. Joseph McMahon’s chapter explores a dispute brought before the WTO by Argentina, Canada and the United States in 2003 against European Community regulations in this area. It examines the conclusions made by the WTO Dispute Settlement Body, the interplay between various WTO Agreements and the aftermath of the decision. It concludes that while the European Union maintains a negative outlook toward such products, the food crisis, the realisation of the Millennium Development Goals, and other longer term concerns might lead to a change in existing attitudes.

Jane Kelsey assesses the role that the private sector plays in our globalised world, examining how services that were previously the domain of the public are now delivered through the private sector. She rightly observes that public services are no longer what they used to be: liberalisation of foreign investment, the transnationalisation of services and the emergence of international supply chains have removed many services not just from the public domain, but also from the effective control of national governments. This menu of privatisation, deregulation and globalisation continues to expand, despite evidence from all over the world that mercerised public services often fail, sometimes with tragic human consequences. This chapter focuses on the consequences of embedding the market paradigm in the General Agreement on Trade in Services (GATS) and in the proliferation of free trade agreements. These agreements have fuelled a ground-swell of local resistance, and the chapter analyses the ongoing debate on the role of public services.

When considering private sector issues within the globalisation debate, it is necessary to include an assessment of the role of Transnational Corporations (TNCs), and their responsibilities for issues of environmental and social justice. Juliette Overland begins the next chapter by considering the meaning of corporate social responsibility (CSR). She describes how this concept requires a balancing of the corporate desire to profit from business activities against society’s increasing need for its corporate citizens to make a positive contribution. Overland then highlights the difficulties faced in regulating TNCs under national and international law, and critically analyses the various legislative and non-legislative initiatives that have attempted to address those challenges – the reformulation of directors’ duties, the use of foreign direct liability laws, the promotion of international norms, codes of conduct and triple bottom line reporting. She argues that the ease with which TNCs conduct their international businesses actually can provide a fillip to the concept of CSR, by drawing greater attention to the resulting social and environmental injustices. Overland notes that, while globalisation has enabled TNCs to expand their international empires and more easily conduct businesses across many continents (which is often to the detriment of the environment and those in the developing world), globalisation has also enabled information to be more easily and quickly disseminated to an increasingly wide and sophisticated audience, which places greater attention and scrutiny on the activities of TNCs. It is this increased attention and scrutiny that is most likely to lead to TNCs acting in a socially responsible manner through enlightened self-interest.

When considering the position of global corporations, another vital dimension to the international trade law regime – the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS Agreement) – reflects how globalisation intersects with issues of social justice. The intellectual property rights system has reached a high degree of internationalisation. While the process is a century old, and started when individual inventors and creators were its key proponents, global corporations have had a growing and decisive influence in moving that process forward over the course of the last 50 years. The internationalisation of intellectual property rights rules provides an important platform for the transnational action of corporations and for deepening the globalisation of the economy. Carlos Maria Correa’s chapter explores the inter...

Table of contents

• Contents
• Acknowledgements
• Notes on contributors
• Table of cases
• 1 Achieving social and environmental justice through the many dimensions of globalisation
• 2 ‘Globalized localisms’
• 3 Global standards and specific needs
• 4 Blue oil
• 5 Economic globalization
• 6 Standards in the WTO – attitudes to biotechnology
• 7 Embedding the neoliberal transformation of government services through trade in services agreements
• 8 A multi-faceted journey
• 9 Globalisation and intellectual property rights
• 10 Globalisation and children’s rights
• 11 Gender and globalisation
• 12 ‘ “Why do they hate us?” … They hate our freedoms’
• 13 Harbingering a new paradigm of global governance
• 14 The challenges of globalisation and international law
• Selected bibliography
• Index