Environmental Protection is a Consequence of Economic Development

It is not a secret that international economic law is biased against environmental protection. It is obvious in the results of WTO cases¹ as well as through regimes such as Trade-Related Intellectual Property Rights (TRIPs), in which plant breeder’s rights trump the interests of birds whose habitat is planted with genetically modified crops.²

One of the biggest misconceptions purported by international economic lawyers is that environmental sustainability cannot occur prior to a certain level of economic development.³ It is possible that if countries such as Brazil, Indonesia, China and India choose to ‘develop’ and industrialise in the same manner as in Europe and the United States, they may succeed and eventually don a greater environmental awareness as their burgeoning middle class can ‘afford’ to care. On the other hand, one could make several points to counter such a notion.

First, it is difficult to argue that development in the US and Europe has become ‘sustainable’, since in the process they eradicated much of the biodiversity within their borders,⁴ which if we take the anthropocentric approach could be considered the permanent loss of an economic resource. Furthermore, by refusing to develop sustainably the third world is perpetuating the first world’s reliance on the exploitation of nature that began in their respective countries and now continues vicariously through the third world, which exports products that are artificially cheap resulting from ignoring depletion of resources, damage to infrastructure and the cost of man-made ‘natural’ disasters. Also, an anthropocentric perspective causes us to ignore the importance of biodiversity and to neglect the basic needs of other creatures. Usually law at least reflects the value of other animals as protected property, because of the neoliberal influence on how sustainability is defined by economic law and environmental law, harm (i.e., tort) to other species is considered a relatively inconsequential externality.

Simplistic Perspective of ‘the Environment’

The view reflected in IEL must assume global warming and conservation of bio-diversity are non-issues. The influence of the international economic paradigm is causing international environmental law to evolve with the same distorted view of ‘sustainable development’. Principle 3 of the Rio Declaration condemned any trade barriers implemented to deter ‘non-ecologically viable forest exploitations’, even going so far as to call the trade barriers anti-environmental because they impede long run ‘sustainable management’ of the forests.⁵ Given they are very specialized, it is perhaps excusable for economic lawyers to view sustainability as only a question of urban environmental awareness, which means a population has potable water, clean air to breathe and they are not getting cancer because their homes are built on top of toxic waste sites. However, in reality environmental sustainability is much more complicated. As Rio demonstrates, environmental scientists clearly have not been in charge of the world’s environmental summits.

The US Shrimp/Turtle WTO case, while a small victory for staving off extinction of one species, set no precedent for legitimatising international claims on behalf of other species. It in fact only reaffirmed that the only role turtles had to play was a ‘natural resource’ for the United States, who having cited Article XX(b)(g) of the General Agreement on Tariffs and Trade, contended the turtles were a ‘shared global resource’⁶ according to the Panel report. Furthermore, the Appellate decision, which overturned the Panel’s ruling and found in favour of the US, charged the real issue at hand was the US legal interest over its resources as a sovereign state, as the turtles migrate also into US territorial waters. It is obvious that international economic law reflects a speciesist sentiment, but how does this impede the principle of sustainability?⁷ The most obvious answer is that that it allows for depletion of resource base. It does this by regarding environmental health as a luxury, as opposed to a necessity.