Leiden Journal of International Law

INTERNATIONAL LAW AND PRACTICE: Symposium: FAIRNESS IN INTERNATIONAL ENVIRONMENTAL LAW

Against Fairness? International Environmental Law, Disciplinary Bias, and Pareto Justice

MARIO PROST and ALEJANDRA TORRES CAMPRUBÍ*

Abstract

International environmental law (IEL) as a discipline has failed to respond to problems of fairness in a meaningful and systematic fashion. Whilst IEL has long acknowledged the existence of competing claims regarding the fair distribution of costs, resources, and responsibilities, fairness remains at the periphery of the disciplinary discourse. The present essay considers some possible explanations for this neglect. The first part of the essay examines a set of implicit assumptions and beliefs in which IEL is embedded, which somewhat prevent genuine and critical engagement with fairness issues. The second part of the essay considers normative and policy arguments recently developed in the law and economics literature that explicitly argue against the notion that fairness should play a role in the design and implementation of environmental regimes. The essay concludes by calling for a more robust engagement with fairness issues and by considering some of the implications this project may have for IEL.

Key words

  • disciplinary bias;
  • fairness;
  • international environmental law;
  • law and economics;
  • North–South divide

Footnotes

* Mario Prost is a lecturer in law at Keele University [m.prost@law.keele.ac.uk]. Alejandra Torres Camprubí is a research fellow at the Faculty of Law, Universidad Autónoma de Madrid [atorrescamprubi@yahoo.es]. The authors are grateful to Joseph Watson and Luciano Donadio Linares for their helpful comments.