Tag Archive | "sustainable development"

wind farm

Aligning International Trade with Sustainable Development

The New York Times Editorial Board recently published an article explaining the need for greater transparency and stricter environmental regulations in trade agreements. The Times missed the opportunity to explain the history of international trade and investment agreements and their tenuous relationship to sustainable development.

With globalization has come greater intergovernmental cooperation, increased trade, and a widening global middle class. However, globalization has also created greater environmental degradation, increased emissions of greenhouse gases, and the exploitation of labor in developing countries. Given the positive and negative consequences associated with globalization, governments and non-governmental organizations have acknowledged the need to align global trade with sustainable development. Recent bilateral investment treaties and model investment treaties have acknowledged sustainable development as a primary objective. Yet the trend towards large multilateral trade agreements has cast doubt on whether sustainable development will remain a priority.

wind farm

Meeting the world’s rising energy demand through sustainable means will require strategic global investment (UN)

Bilateral investment treaties proliferated during the 1970s through 1990s. Developing nations entered into these treaties under the theory known as the Washington Consensus: that allowing foreign investment and lowering trade barriers would ultimately lead to economic growth, raise quality of life, and reduce poverty. Developing nations became wary of this logic once the perils of a free-market became apparent and investors pulled out of regions following a rise in wages. These countries have begun incorporating greater protections on human rights and the environment in addition to acknowledging the right of the State to legislate in the best interest of the public.

There is some doubt as to the efficacy of bilateral investment treaties for attracting investment. There is scant data showing that they increase investment, and little that they do to enforce obligations. The Trans-Pacific Partnership (TPP) and Transatlantic Trade and Investment Partnership (TTIP) illustrate the trend towards homogenizing trade regulation through multilateral agreements. While this is generally positive for international trade, concerns remain.

The TPP has been negotiated in secret, and what has leaked has caused concern for many observers. It seems that a predominant goal is to lower trade barriers while protecting the interests of large companies. Investor protection provisions demonstrate how companies may challenge legitimate regulations made for environmental or ecological concerns. Additionally, while environment and human rights have been addressed in negotiations, those issues have not been a priority and there is little to suggest that they will get the robust enforcement needed.

For sustainable development to remain a priority in international trade, there must be a concerted effort to weave the principles of sustainability into the purpose of multilateral trade agreements. However, this is not sufficient to ensure sustainable development will continue. Local governments must hold businesses accountable to their communities and resist a race to the bottom. Most importantly, businesses must commit to sustainable development in practice and not simply pay it lip service. Such action will result in a mutually beneficial relationship between businesses and the communities in which they operate.

 

Alex Milgroom is a 3L at the University of Denver and the Online Editor-in-Chief of the Denver Journal of International Law and Policy

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This article is based on an academic paper by the author available here.

 

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Putting a Price on Carbon

This July, Australia abandoned its plans to implement a carbon tax. Prime Minister Kevin Rudd stated that the reason was to reduce the burden on consumers and small businesses. This news would seem to suggest that Australia wanted to avoid the repercussions of reducing carbon dioxide emissions; however, the tax was instead replaced by a market-based trading system (cap and trade) a full year ahead of schedule. Prime Minister Rudd called combating climate change “the greatest moral challenge of our time.” Australia’s scheme is just one example of the growing movement towards a global carbon market. While the Kyoto Protocol provided a framework for carbon trading, many regional systems have emerged in recent years. The success of these markets has varied, and creating a unified global market represents a huge potential both in economic and environmental terms.

smokestacks of a power plant

Power plants are just one contributor of carbon pollution (Audubon)

Both a carbon tax and carbon trading scheme create incentives to reduce CO2 emissions. A carbon market differs from a tax in that there are a limited number of credits or allowances for CO2 emissions and the market determines the cost thereof. A fundamental feature is that an overall reduction target limits the total amount of permitted emission. The Kyoto Protocol included the basis for a trading scheme to allow countries a mechanism to meet their obligations under the treaty. It has been largely ineffective due to the surplus of credits available as well as the U.S. not participating, Japan withdrawing, and China’s exemption. One of the most prominent carbon markets in the world is the E.U. Emissions Trading Scheme, which also suffers from an abundance of carbon allowances. A coordinated, global effort is needed to address the economics of carbon emissions.

Excess carbon dioxide in the atmosphere can disrupt the carbon cycle for between 500 and 1000 years if left to natural processes. Because every region of the world contributes to CO2 emission, and once in the atmosphere, CO2 pollution from one region is indistinguishable from another, and because the impact is so far removed in time from the source of emission, it is entirely impossible for the free market to curb CO2 emissions without a cost imposed on such emission. A carbon market may provide incentives to reduce emission commensurate with the ambitiousness of overall carbon reduction, but it does not provide an accurate price for removing existing CO2 from the atmosphere. Carbon removal technologies are an assumption built-into many climate models which project that they are crucial to remaining below the 2°C threshold identified by the Intergovernmental Panel on Climate Change (IPCC). Atmospheric carbon removal will need financial backing and a profit-motive if they are to be viable.

Several technologies show potential in reducing atmospheric CO2. Direct carbon capture from the flue of sources like power plants is available but expensive with a high parasitic energy level. Alternatives are gaining ground: a combined CO2, SO2, NOx system with a net carbon reduction now exists for ships, artificial trees are currently being tested and scaled to larger sizes, while afforestation and biochar uses vegetation to disrupt the carbon cycle. Converting CO2 to calcium carbonate is also a potential method of sequestering CO2 rather than pumping it back into wells for enhanced oil recovery. New technology for cement production makes efficient use of such calcium carbonate (in addition to avoiding CO2 emission typical of ordinary cement production).

President Obama recently outlined his plan for combating climate change, and creating a viable carbon market through tax or other means that would recognize the long-term impact and costs of CO2 pollution and create opportunity for innovation and job growth, not to mention make alternative energy more appealing financially. Several Republican former administrators of the Environmental Protection Agency just endorsed such approach in an op-ed to the New York Times. Although CO2 pollution is a global issue that needs to be addressed at the international level accordingly, the initiative can begin domestically.

 

Alex Milgroom is a 3L at the University of Denver and the Online Editor-in-Chief of the Denver Journal of International Law and Policy.

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Chinese urban center

Critical Analysis: China’s ‘Rebalancing’ Through Urbanization

Chinese officials recently announced their intention to move 250 million rural residents into cities over the next decade in an effort to reform China’s economy. The goal is to create a new class of urban consumers and increase demand domestically, thereby making economic growth more sustainable. The policy follows in the footsteps of previous actions by the Chinese government to expropriate farmers’ land for development while providing little to no compensation. This mass urbanization could prove to be similarly controversial.

Chinese urban center

A Chinese man in the shadow of the future for rural peasants (Reuters)

China’s economic success in sustaining economic growth through the last decade has been based primarily on exports. It accomplished this by a combination of low wages, currency controls, and investment in manufacturing, in turn becoming the world’s largest exporter in 2010. Recent forecasts have predicted that China’s growth will slow in the next few years, prompting officials to seek a more sustainable economic strategy, termed ‘rebalancing’. Urbanization, or relocating peasants to urban centers, is a highlight of the new strategy. The idea is that by providing rural farmers with apartments in cities, they will find better paying jobs and become a new consumer class, thereby increasing domestic demand and allowing China to be less dependent on exports. The plan is not without its drawbacks.

Problems have already arisen in this process. Jobs are not readily available for the unskilled peasant class, forcing laborers to take jobs significant distances from their subsidized housing. Urban living also has a higher price tag than a rural lifestyle, requiring a substantial portion of income for utilities and basic necessities like heat and electricity. Of course, farmers have no leverage in this process as urban land is owned by the government and rural by local farmers collectively. Without sufficient property rights, farmers are dependent on the meager subsidies provided by the government once moved into the city, while the market value for land is not truly reflected in the costs for development, leading to inefficiencies in land use and availability.

The last time China attempted economic engineering of this scale was in 1957 with Mao Zedong’s Great Leap Forward. Rural peasants were responsible for providing the food supply for the country’s rapid modernization as well as laboring in heavy industry like iron and steel in backyard furnaces. The result was the largest famine death toll in world history. While technology and improved planning would hopefully prevent a recurrence of famine, there are nonetheless several flaws in China’s urbanization plan. The most glaring is that consumption growth follows an increase in disposable income, which will not occur if wages continue to be suppressed by maintaining a surplus of unskilled labor in the market. Unemployment could lead to discontent and, in turn, a more organized opposition to the Communist parties as farmers are already the most vocal opponents to government actions. Additionally, emphasizing consumption rather than investment in innovation or technology will limit the future growth of the economy.

There is little doubt that China’s economic strategy must adapt to a more sustainable model, although it is yet to be seen whether urbanization will result in continued subsistent existence for peasants or a new era of prosperity. Along with environmental concerns and an aging population, China has its work cut out for it.

Alex Milgroom is a rising 3L at the University of Denver and the Online Editor-in-Chief of the Denver Journal of International Law and Policy.

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Garment factory collapse

Corporations Have a Duty to Practice Public Responsibility

It took the disastrous collapse of a building in Bangladesh that housed several garment factories and the loss of more than 1,000 lives for the world to begin to pay attention to the plight of garment workers there.

The workers are paid the minimum monthly wage of about $37, occasionally go unpaid, and protesters are often intimidated. There is no collective bargaining, no unions without the owners’ consent. Lack of regulation and poor, badly enforced safety standards combine to create a dangerous workplace.

Last November, 112 workers were killed in a fire in another garment factory near Dhaka, the Bangladeshi capital. Last Monday, more than 20 workers were injured in Cambodia when a metal and concrete shelter outside a garment factory collapsed, tumbling into a pond.

After the November fire, the Walt Disney Company decided to pull its operations out of Bangladesh. The European Union’s trade commissioner warned that if the Bangladeshi government failed to take prompt action to improve labor standards, the EU would consider suspending Bangladesh’s duty- and quota-free access to EU markets.

In the aftermath of the recent tragedy, the government announced a labor law reform package aimed at complying with international standards.

Bangladeshi woman

A Bangladeshi woman holds a portrait of a relative lost in the garment factory collapse (AP)

The garment industry is huge in Bangladesh, as many fashion companies and big retailers moved there from China, choosing Bangladesh’s highly developed system for manufacturing and shipping large volumes of high-quality garments at a low price. Now second only to China in export volume, Bangladesh’s garment production accounts for 80 percent of the country’s exports and is worth more than $19 billion, employing almost 4 million workers, mostly women, in 5,000 factories.

On May 13, more than 30 mostly European companies — including H&M, Mango, and the parent company of Zara — signed a legally binding labor safety agreement. Among American companies, only Abercrombie & Fitch and PVH, the parent company of Tommy Hilfiger and Calvin Klein, signed on. PVH also committed to pay $2.5 million toward factory safety improvements. But several other major American retailers — among them Wal-Mart, Sears, and the Gap — have resisted signing the accord.

Under the agreement, disputes will be settled by binding arbitration, enforceable in the courts of the retailers’ home countries. However, the National Retail Federation, which represents many American stores, has criticized this provision as “legally questionable,” and “a process that serves only the unions, not the workers they represent.”

Gap representatives said because the “litigation landscape is different in the U.S. than in Europe,” it would sign the agreement if the legally binding provision is replaced by a provision under which a retailer not complying with the standards would be expelled from the program.

Wal-Mart and Japan’s Fast Retailing Co. have decided to implement their own programs. Wal-Mart proposes to include hiring and paying an outside auditor to inspect every factory in Bangladesh that produces goods for Wal-Mart and publish the results on its website. It is also establishing an independent call center for garment workers in those factories to report unsafe conditions.

How effective are private, voluntary efforts to address labor and safety issues? Honestly, not very. “Despite many good-faith efforts over the past 15 years, private regulation has had limited impact,” says Richard M. Locke, who has spent more than a decade studying the issue. “Child labor, hazardous working conditions, excessive hours, and poor wages continue to plague many workplaces in the developing world, creating scandal and embarrassment for the global companies that source from these factories and farms.”

Locke focused his study on Nike, whose image was tarnished in the 1990s because of accusations of underpaying workers in Indonesia, use of child labor in Cambodia and Pakistan, and poor working conditions in Vietnam and China. In response, in 1992, Nike developed its own corporate standards for working conditions, wages, hours, and health and safety, and required its suppliers to accept those standards. It also uses private audits to ensure compliance and expanded its oversight staff, spending millions of dollars to improve working conditions at its supplier factories.

Locke says he found “Nike auditors and compliance staff to be serious, hard-working, and moved by genuine concern for workers and their rights,” and was impressed with “Nike’s commitment to labor standards.”

Nevertheless, he concluded, Nike has been unable to ensure that its high standards have consistently been met. While some factories have complied with the code of conduct, “others have suffered from persistent problems with wages, work hours, and employee health and safety.”

Nike isn’t alone. “Consider the global brand empires,” Locke says. “They want high-quality products delivered as quickly and cheaply as possible. They also fear that harsh working conditions could, if discovered, create scandal and hence risk to their reputation. Yet, because they are competing with one another, they are unwilling to pay extra for improved working conditions, which could lead to price increases that threaten market share.”

The reality is that many developing countries refuse to enforce even their own regulations. These problems are systemic, and the solutions must be systemic, as well.

Private initiatives and voluntary self-regulation are important incentives to government action, which is essential to promote and protect labor rights. And government regulation and functioning institutions are essential if private initiatives are to succeed. A few decades ago, several multinational corporations set goals of social responsibility.

The results, however, were mixed. So a shift has taken place from simply creating those goals to devising means to ensure enforcement. Public-private partnership is essential to make this happen.

Market pressure is essential to ensure compliance by suppliers, ethical investing by large institutions, and auditing and certification. The United Nations’ Global Compact Initiative and Guiding Principles are laudable. They are based on a three-pillar framework: the state’s duty to protect human rights; the corporate responsibility to respect human rights; and the need for greater access to effective remedy for victims of business-related human rights abuse.

In addition, several federal and state statutes have imposed due diligence requirements on corporations with the goal of addressing human rights concerns. A new class of for-profit public benefit corporations are in development. Last month in Colorado, Gov. John Hickenlooper signed the Public Benefit Corporation Act, which states that benefit corporations are “intended to produce a public benefit and to operate in a responsible and sustained manner” while also taking into account shareholder interests.

Notably, directors of such corporations are authorized to consider social, environmental, and other goals in addition to maximization of profits as they make decisions, which is a major change from the customary bottom-line thinking.

Benefit corporations and corporate social responsibility norms demonstrate how far we’ve come. Only the marketplace will demonstrate how far we’re willing to go.

Ved Nanda (vnanda@law.du. edu) is Thompson G. Marsh Professor of Law and director of the International Law Program at the University of Denver Sturm College of Law.

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Sustaining Society in the Anthropocene Epoch

We are living in a new geological epoch where humans are the foremost changers of the environmental systems upon which we depend.  Nicholas Robinson, Co-Director of the Center for Environmental Legal Studies at Pace Law School, kicked off the 45th Annual Leonard v.B. Sutton Colloquium in International Law at the University of Denver Sturm College of Law with this idea about sustainability. “Humans are going to have to adapt to a changing planet and climate,” Mr. Robinson said. “We [must] do it or it will happen to us.”  He cited his difficulty in traveling to Denver for the Colloquium due to Hurricane Sandy as one example of climate change “happening to us,” and our already evident challenges in adapting to it.

The focus of the Sutton Colloquium was “Approaching the Limits of Growth in the 21st Century: Sustainable Development vs. Sustainability.”  Mr. Robinson made clear that the climate change and sustainability challenges that human society faces today are based on human behavior. Humans have caused these changes, and moved human society into this new geological epoch known as the Anthropocene epoch. “[T]he true meaning of the Anthropocene is that we have affected nearly every aspect of our environment—from a warming atmosphere to the bottom of an acidifying ocean.

Don’t forget about the glaciers!
(National Geographic)

Mr. Robinson asked the question of whether or not sustainability is a viable model to tackle these challenges.  He questioned whether the sustainability model, as it stands now, is sufficient to allow adaptation to the extreme damage caused in the Northeastern U.S. by Hurricane Sandy or if it adequately repaired the damage by Hurricane Katrina, explaining that 40 percent of New Orleans residents did not return to their city after the hurricane.   A conclusive answer to this question is difficult, and Mr. Robinson stressed that there is no clear vision for the international community’s next steps toward tackling sustainability issues.

Fortunately, Mr. Robinson has a suggestion about how the sustainability debate should be tackled.  If we are truly in this Anthropocene period driven by human impact, “we have to be the stewards of this [epoch].”  Simply put, we must change our behavior. To do this, he suggests three principles to guide our behavior.

First, we must cooperate globally to stabilize the human relationship with nature.  Principles of cooperation are already enshrined in international law, as laid out in Articles 55 and 56 of the United Nations Charter, for example.  These international law principles can provide a foundation to build upon as the world community comes together to finds solutions for sustainability.

Second, we must build a stronger collective desire to protect our planet.  Mr. Robinson explained the concept of “biophilia,” or the love of living things, to demonstrate that humanity has a natural affinity for the planet.  He suggested that we “need to elevate this concept of love of the planet in order to protect the planet as a principle of law.”  Our concern for the planet must become such that we afford it stronger legal protections.

Third, we must utilize our ability as humans to be resilient. Ecosystems have natural resilience, Mr. Robinson explained.  They either reset or adapt to changes.  Humans also have this type of resilience and we must capitalize on it as we adapt to change our own behavior.

These three traits can be the basis for sustainability. Without coming up with common themes like these to guide our behavior, Mr. Robinson concluded, our planet will not bounce back.

Brianna Evans is the Editor in Chief of the Denver Journal of International Law & Policy and a third year law student at the Sturm College of Law.

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Sutton Colloquium 2012: Sustainable Development v. Sustainability

Join the Denver Journal of International Law and Policy, the Ved Nanda Center for International and Comparative Law, and the International Legal Studies Program for the 45th Annual Leonard v.B. Sutton Colloquium on Saturday, November 10, 2012.  This year, the Colloquium will consider sustainable development v. sustainability as the globe approaches the limits of growth in the 21st century.  This event will consider the impact of the UN sustainability conference in Rio de Janeiro twenty years ago.

In today’s world we aspire to foster economic growth and to achieve sustainability.  But are these two goals compatible?  In light of the shortcomings of the Rio + 20 Earth Summit, which one media syndicate labeled “a failure of epic proportions,” this year’s 45th Annual Sutton Colloquium addresses the current relationship between sustainable development and sustainability.  We are joined by local, national and international legal and environmental experts who will share their perspectives on how “best” to preserve our earth for future generations.

Topics will include the role and effectiveness of the rule of law and rule of law initiatives; the contrasting proposed approaches to the global environmental crisis, focusing on the advantages and shortcomings of each paradigm; and the future direction of international environmental law as we approach the limits of growth in the 21st century.  The panelists, who are practitioners and scholars from across the United States, are experts in their fields and have much to share on the topic.

The Sutton Colloquium has been approved for 8 CLE credits, which includes pending ethics credits.  It will be held on Saturday, November 10, 2012, at the Sturm College of Law.  To register, please click here.

The Leonard v.B. Sutton Colloquium in International Law was named for a former Chief Justice of the Colorado Supreme Court who was a close friend and longtime supporter of the International Legal Studies Program.

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Denver Lights the Night: October 16, 2012

Elephant Energy – Helping to Provide Sustainable Energy in Africa

The Sturm College of Law’s International Law Society is partnering with the Natural Resources and Environmental Law Society to “Denver Lights the Night.”  This upcoming event that supports Elephant Energy’s renewable energy development in Namibia, Zambia, and Navajo Nation.  The event will take place Tuesday, October 16 from 6-8 p.m. at the law school.

There are 1.3 billion people around the world who do not have access to electricity.  Lack of access to energy remains one of the key factors stifling development with off-grid communities forced to spend up to 20% of their income on expensive energy options.  Elephant Energy combines the breakthrough potential of solar technology with a village-based sales model to deliver energy to poor households, resulting in money savings, improved quality of life, and conservation of natural resources.

Elephant Energy is a non-profit organization which seeks to improve the quality of life in developing communities by pioneering ventures that provide access to appropriate sustainable energy technologies.  Elephant Energy works in Namibia and Zambia, Africa, and its subsidiary organization, Eagle Energy, works on the Navajo Nation, USA.  Check out www.elephantenergy.org for more information or view their 2011 Annual Report.

The gathering is a time for our supporters to learn about Elephant Energy’s progress on the ground in 2012, and generally eat, drink, and be merry.  The event is FREE, and donations are optional but appreciated. All donations will receive a minimum 30% match from www.globalgiving.org.  Cash and check will be accepted at the event.  The donations collected at the event will support Eagle Energy’s expansion into the Bennett Freeze area on the Navajo Nation and Elephant Energy’s Women’s Energy Project.

For more information, or to RSVP, please click here.

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Old and New China

Part 6: Mianzi, Chinese Perspectives and Chinese Practice

Old and New China

Old and New China

Upon reflection, two divergent themes emerged from Judge Xue’s lectures.  Much of what she said made me realize that Western apprehension over China’s rapid ascension is somewhat misplaced and that the Chinese government is serious about using its power to improve the lives of its people.  It gave me confidence that China is likely to be a constructive addition to the geopolitical balance.  However, as an avid consumer of global news, some of what Judge Xue argued rang hollow against the backdrop of the free media’s coverage of China’s practices.  I attempted to reconcile this discrepancy through the Chinese concept of mianzi.

Mianzi is best translated in to English as “face,” in the metaphorical sense in which a person can “save face.”  Due to my aunt and uncle having lived in Shanghai for over five years, I knew that this translation was not perfect; the concept means slightly different things in China than it does in the West.  Not only is saving face more important in China, but the way in which one saves face is also slightly different.

The clearest example of this discrepancy that I can find concerns a well-fed child carelessly knocking a vase off of the table while his parents are not home.  In the United States, the child would simply blame it on the dog.  If the American boy’s parents found out that he had lied, he would be punished both for breaking the vase and for lying about it.  In China, by contrast, the careless boy would likely tell his parents that, while he did in fact knock down the vase, he did so because he skipped breakfast and a wave of dizziness came upon him.  The Chinese boy is sorry that he forgot to eat breakfast.  If his parents found out that he had indeed eaten breakfast, they would be upset about the vase but would understand why he had fabricated the reason for the accident.  I opened Judge Xue’s closing seminar with a question about whether the concept of mianzi affected China’s behavior with respect to the international community.

Judge Xue began her answer to my question by thanking me for realizing the importance of Chinese culture in its conception of international law.  But to my surprise, rather than openly discuss the differences between the Chinese and Western concepts of face, Judge Xue simply stated that all cultures have this concept and that it was basically a wash when it came to international relations.  Nonetheless, it is my sense that Judge Xue’s lecture, and even her answer to my question, offer some insight into the concept of mianzi.  While China has indeed been misunderstood by the West and criticized in an overly-harsh and unproductive way, where China’s footing is weak from an objective standpoint, is asserts full compliance, maintaining mianzi.

In concluding this six-part series, I will briefly summarize Judge Xue’s position on each major issue discussed in the lecture and discuss the extent to which Western criticism has been either unwarranted or is on point.  I will also discuss areas where it is possible that Chinese denial of fault is based on its desire to keep face in the international community.  I will conclude by suggesting that China’s reliance on mianzi is a cause for Western optimism.

History

When Chinese leaders make policy decisions, they do so not as purely objective actors but as Chinese citizens whose culture and self-identification color the choices they make.  As such, China’s complex history of international relations – that of victim, outside observer, and finally active participant – has lead to a modern China that guards its sovereignty jealously and views the prospect of global governance with a skeptical eye.  China’s historical claim is to be taken seriously and respected by the West.  A globalized world must be able to tolerate state actors who do not share a common history and culture.  This is a baseline criterion if the world is to move forward in a manner that favors peace and respects the rule of law.  This is an area where Chinese perspectives and Chinese practice line up perfectly and Western criticism has been mostly off point.

Sovereignty

Map of the South China Sea

Map of the South China Sea

The Chinese conception of sovereignty is closely related to its history, but China’s contemporary record is more mixed when it comes to its sovereignty and that of its neighbors.  On the one hand, Judge Xue’s pronouncement that sovereignty requires “supremacy internally and independence externally” is the primary basis for the international order and represents a major current of international legal scholarship.  It is an appropriate position that Western countries should not only respect but also see in their own actions.  On the other hand, China outwardly refuses to tolerate any exceptions to this rule while making exceptions of its own in the South China Sea.  China’s official position on the South China Sea is that it has absolute sovereignty over its entirety.  It is clear from a map of China’s claimed territory that such an assertion infringes on the sovereignty of Vietnam, Malaysia, Indonesia, Brunei, and the Philippines.

Sovereign equality is an inseparable part of sovereignty, and China must adhere to the UNCLOS boundaries, the only equitable solution to this dispute, if it in fact respects the idea that it claims to hold so dear.  When China advances the notion that it has a sovereign right to the South China Sea that is contrary to the UN Convention on the Law of the Sea, it is pursuing its domestic self-interest and trying to keep face while doing so.  China’s stated position regarding sovereign equality is sound, but Western pressure in the face of Chinese action violating its stated principles is warranted.

Sustainable Development

China’s response to Western criticism of its environmental record is two-fold.  First, China maintains that the West must view Chinese actions in the context of the world’s largest developing country with the world’s fastest growing economy.  Second, China asserts that the West must appreciate the fact that, while China takes sustainable development seriously, it refuses to sacrifice the practical well being of its citizens to satisfy the West’s goals related to protecting the environment.  China bolsters its credibility through an historical record of addressing environmental concerns once they adversely affect the Chinese people.  The West would do well to recognize that China is in a different stage of development than its European and North American counterparts, and only time will tell how China’s state practice surrounding sustainability stand up against its pronouncements.  Every developed country went through a period of rapid industrialization on its way from an agricultural to a manufacturing economy, and if history is any guide, that period is necessarily coupled with a marked increase in pollution.  There is no reason for the West to expect China’s development to proceed any differently.

Nonetheless, there is no guarantee that China will continue to follow the long-term Western historical pattern.  In the Western framework, once an agricultural economy transitions into a manufacturing economy, a middle class begins to form.  Then, a period follows in which industrial expansion and the growth of the middle class occur in lockstep.  Once environmental degradation begins to adversely affect this newly empowered middle class, political pressure leads to environmental protection.  According to Chinese pronouncements, this is exactly what the West should expect – China refusing to acquiesce to Western demands only to meet those same Western expectations in response to the needs of its own people.  However, the Earth Policy Institute recently found that lung cancer is the leading cause of death in China.  This is a highly abnormal phenomenon that can only be attributed to unprecedented air pollution.  The needs of the Chinese people clearly call for an improvement in China’s environmental record.  In this case, the coin is in the air as to whether China will admit that a change in course is needed to adequately protect its people.  The West should give China a chance to live up to its stated expectation but criticize the nation if it fails to do so.

Human Rights

In her lecture on human rights, Judge Xue stressed China’s history of constitutional and administrative improvements as well as changes to the criminal justice system to show the country’s commitment to the promotion of human rights.  Above all, the Judge emphasized the fact that China’s embrace of the market system has lifted 300 million people out of poverty and is a human rights achievement in itself.  While the lack of the direct applicability of the Chinese constitution calls into question the positive effects of constitutional reform, the implementation of a civil system allowing citizens to sue the government and the modernization of the criminal code are real, concrete developments that have improved the humanitarian situation of the Chinese people.  Moreover, it is true that human rights are paper rights without the economic means of enforcing them.  As such it must be said that, in absolute terms, lifting 300 million people out of poverty over the course of 33 years is one of the greatest human rights achievements in modern history.

Dissodent artist Ai Weiwei's Shanghai studio demolished by Chinese Government

Dissodent artist Ai Weiwei's Shanghai studio demolished by Chinese Government

The Chinese have made impressive progress in some human rights areas, and it claims that it is working tirelessly to improve in all areas.  However, an exchange between a colleague of mine and Judge Xue suggests that “steady pursuit of all human rights” may not be an accurate characterization of China’s path forward.  My colleague asked Judge Xue to square her presentation on Chinese perceptions of human rights with news stories coming out of China of imprisoned dissidents, censored internet traffic, and lies about train wrecks.  Judge Xue’s responded that China needed time to develop the capacity to provide for the human rights of all its citizens and that the government reserves the right to allow human rights to develop alongside economic rights.  My colleague then tried to ask a follow up question distinguishing between positive and negative human rights but did not get very far.  Nonetheless, my colleague put his finger on the key distinction between the acceptable and unacceptable aspects of China’s position on human rights.

China’s basic human rights argument is twofold.  First, there is the economic argument that China has a sovereign right to spend its limited resources as its sees fit, putting economic development ahead of the promotion of human rights.  Second, there is the cultural argument, says that because China is a collectivist society, Chinese citizens are willing to go without if doing so means that their children and grandchildren can live in a more prosperous country.  This second argument is not really testable, but if it is true that the Chinese people have a strong collectivist mentality, China’s treatment of positive human rights should not offend the vast majority of the its citizenry.  These two arguments may be successful when positive rights are at issue, but they fail with respect to negative rights.

These arguments hold with respect to positive human rights, which are rights with a corresponding obligation that something be given to the right-holder.  Providing for rights such as education, health care, and protection from crime requires substantial resources, and China has a sovereign right to prioritize the way in which it uses those resources.  China has chosen to focus on improving its economy and has proven that promoting economic development leads to the subsequent development of positive human rights for those benefitting from economic expansion.  With respect to positive rights, China’s stated position is economically sound and appears to be culturally acceptable.

However, the both Chinese arguments fails with respect to negative human rights, which are rights with a corresponding obligation that something not be done to the right-holder.  Filtering the internet, enforcing house arrests, and punishing dissidents not only deny Chinese citizens the negative human right not to be persecuted for peaceful expression nor denied access to information, they actually cost money to enforce.  China’s economic argument is nonsensical when negative human rights are at issue.  Their cultural argument also fails where negative rights are concerned.  If China is truly a collectivist society, exposure to a small amount of dissident information should not change thousands of years of cultural tradition and end in riots on the street.  And even if it does, do the Chinese people not have the undeniable right to change what they believe?  While China should be free to pursue the positive rights of its citizens as it sees fit, the fact that it uses the same argument to justify deprivations of negative rights is pursuing mianzi in its most destructive form.

Concluding Remarks

In closing her lecture on sovereignty, Judge Xue stated that the central question for the international community is, “How should states with different systems and values interact with one another on the international stage?”  She is right.  The emergence of China as an international player may have prompted that question, but other developing nations such as Brazil and India will eventually join the fray.  Most, if not all, of the values in the human rights regime of international law that emerged after World War II are universal, despite the fact that they were created by a group of individuals that was not demographically or culturally representative of the global population.  However, history has made it clear that philosophy is not the sole driver of geopolitical developments.  If the West ever wants the universality of these hard fought for norms to be realized, it must afford the international system the flexibility of incorporating other cultures’ current conceptions of those norms.

This will only happen if the West shows respect and deference to different histories and cultures of developing nations, letting reason trump both fear and prejudice.  But developing countries must follow suit, and, while China should continue to center its positions on international law around the Five Principles of Peaceful Coexistence, it should realize that the principle mutual non-interference does not shield China from international pressure and that, under certain circumstances, the principle of “equality and mutual benefit” might require such pressure.

Mianzi plays a significant role in China’s pronouncements on international law.  In the Western view, this assertion may carry a connotation of deceitfulness and untrustworthiness.  That would be the wrong conclusion to reach and draws attention to the importance of cultural understanding in a diverse international community.  The careless son lied because he cared what his mother thought about him.  In a similar (though much less subservient) way, China seeks to keep face because it realizes that an interconnected world is one in which reputations matter.  That fact alone is reason for the West to be optimistic as we enter this new, interconnected, and complex global order.

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Beijing Cityscape

Chinese Perspectives Part 4: Sustainable Development

Beijing Cityscape

Beijing Cityscape

One of the most frequently levied criticisms made against China is that its development, while economically impressive, is environmentally disastrous.  Judge Xue addressed this criticism directly by providing the demographic and economic context underlying China’s development, briefly outlining China’s history as it relates to sustainable development, and arguing that the Chinese government is indeed actively promoting sustainable development.  According to Judge Xue, the international community should recognize China’s progress with regards to sustainability and appreciate the fact that due to its size and current pace of economic development, such progress is necessarily slow in the making.

Judge Xue stressed that one must think about Chinese sustainable development in relation to its extraordinary demographic and economic circumstances.  China has a population of 1.34 billion people and an economy that has been growing at a rate of ten to twenty percent for the last decade.  It has twenty percent of the world’s population and only seven percent of the world’s arable land.  As such, it makes little sense for the international community to hold a country like China to the same standards to which it holds countries that have been developed for decades and have already acquired the capacity to provide for the needs of its citizens.  Furthermore, it is unrealistic to expect China to turn on a dime and improve its environmental record overnight.  China’s history shows that it takes sustainable development seriously, but that under no circumstances will it sacrifice the economic wellbeing of its citizenry to satisfy the west’s environmental goals.

China’s history of environmental regulation, according to Judge Xue, suggests that it is serious about sustainable development and the protection of the environment.  In 1984, China set up the Environmental Protection Administration – the first organ of the PRC meant to deal with issues of sustainability.  However, during the 1980’s, sustainable development was equated with economic development and the focus of the Administration was to keep land healthy for farming.  The broader effects of environmental degradation were seen as a mere growing pain.  Thus, China pursued labor-intensive industries to attract foreign investment.  Those who wanted cheap labor and lax environmental regulations came to China.

This led to a set of policies that caused terrible pollution, acid rain, water contamination, accidents that damaged fisheries, and various other consequences that were destructive to the lives and livelihoods of millions of Chinese people.  Starting in the mid-1990’s, China revised its environmental laws to provide for more concrete rules and supervisory mechanisms.

Today, The People’s Republic of China now has a fairly comprehensive legislative regime that touches on water pollution, air pollution, solid waste, and radiation.  Judge Xue made it a point to state that China made the change from irreverence toward to respect for the environment not for the international community, but for the Chinese people who had suffered as a result of pollution.

Today, China is a state party to about 50 environmental treaties and abides by them in good faith.  To help it live up to its environmental treaty obligations, the Chinese government came up with the concept of “Green GDP,” which takes economic and environmental factors into consideration and helps the government make decisions with an eye towards their environmental impact.  The use of Green GDP has already led to a significant improvement to China’s desertification problem.  Additionally, China recently published its “Agenda for the 21st Century,” which contains twenty chapters and 78 concrete program areas and places sustainability at the heart of its development strategy.  In 2005, a chemical factory exploded leading to trans-boundary water pollution on China’s border with Russia.  Both states took cooperative measures to save downstream areas from water pollution.  In 2006, China sought to reduce its emissions by twenty percent by the year 2010, and it met that target.  These concrete steps show that China takes sustainable development seriously and is committed to improving its record in the future.

All this has led to an increase in public participation in environmental assessment.  If a building plan is going to cause harm to individuals as a result of its environmental impact, the Planning Department has a duty to hold public hearings, which will lead to a change of plans if the environmental costs are unnecessary or outweigh the economic benefits.

China sees sustainability both as an end in itself and as a means of achieving broader societal goals.  It will continue to seek a balance between economic and ecological development, keeping in mind current environmental standards.  Judge Xue made it clear that China will do so not because sustainable development is a goal that the international community has for China, but because sustainable development is the only way for the Chinese government to provide for its citizens in the long term.  Judge Xue would have international community recognize the progress China has made in the past and have patience with the development it is to make in the future.

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University of Denver Sturm College of Law

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