Heads in the Sand as the Tide Rises: Environmental Ethics and the Law on Climate Change

Article excerpt

I.

INTRODUCTION

In 1992 the Preamble to Agenda 21 gave a clear definition of the magnitude of the environmental crisis together with a prescription for remedies. Article 1.1 states:

   Humanity stands at a defining moment in its history. We are confronted with
   a perpetuation of disparities between and within nations, a worsening
   poverty, hunger, ill health and illiteracy, and the continued deterioration
   of ecosystems on which we depend for our well-being. However, integration
   of environment and development concerns, and greater attention to them will
   lead to the fulfillment of basic needs, improved living standards for all,
   better protected and managed ecosystems and a safer, more prosperous
   future. No nation can achieve this on their own; but together we can - in a
   global partnership for sustainable development.

Nonetheless at the new millennium we confront an accelerating environmental crisis. The tools we have developed to respond, over the last 30 years, are little more than a "weak patchwork" of laws, covering narrow and segregated sectors of international activity.(1) Many of these laws are treaties that have not been ratified or implemented by the world's nations. Clearly, something more is needed.

This paper argues that the "something more" is the development, and the implementation in law, of an ecological ethic.(2) It begins by illustrating some of the benefits of implementing such an ethic, within the specific context of climate change. The particular focus is on the difference an ecological approach would make to our choice of response measures. In later sections, this paper makes reference to other examples of the development and legal implementation of an ecological ethic, including: the creation of a comprehensive, integrated and ethically guided global framework treaty for international environmental law; the Earth Charter and IUCN Covenant on Environment and Development initiatives; and the emergence of ecological rights.

Law is reflective of prevailing social attitudes, conventional thinking and values. They provide an important foundation for law, and are perhaps most clearly reflected in the environmental laws and policy of states.(3) A close analysis of legal principles and doctrines, together with specific criteria and standards, reveal the values, or ethic(s), upon which they are based.(4) An analysis of the 1992 United Nations Framework Convention on Climate Change ("FCCC")(5) and the Kyoto Protocol,(6) clearly reveals that the prevalent value is one of preserving current forms of economic prosperity, i.e., maintaining the economic status quo - "business-as-usual." This paper demonstrates how legal language sanctions the economic status quo, and why the economically driven measures in the FCCC and Kyoto Protocol are seriously inadequate as a response to the threats of climate change.

But how do we move towards the development and implementation of a new ecological ethic, one which values the environment above the economic status quo? And would its adoption lead to improvement? Would, for example, the response measures in the FCCC and Kyoto Protocol be any more effective in managing climate change? This paper explores these questions by applying an eco-centric interpretation of the "precautionary principle" to selected response measures. As will be seen, this would require a form of prior environmental impact assessment to ensure that the measures adopted will be effective in achieving the necessary levels of environmental protection or mitigation. Applying the "precautionary principle" to existing reduction targets, the emissions trading concept, and the net approach, reveals very serious flaws in each.

Reaching the level of consensus needed for the genuine implementation of an ecological value in law is the most difficult problem. The modus operandi of most domestic political systems, together with the nature of international treaty negotiations, means that only a large scale and fundamental change in the attitude and behaviour of the world's civilian population (particularly those from developed states) will create the necessary political will for change. …