Ozone Depletion, Developing Countries and Human Rights

Victor Williams, The Catholic University of America, Columbus School of Law


After describing the causes, and assessing the magnitude, of the most recent assessments of the ozone depletion problem, this article discusses the two predominate legal mechanisms (i.e., customary international law and treaties or similar agreements) that have been used to force and shape an international response to that and similar environmental problems. This article discusses the manner in which customary law historically has been used to obtain equitable results that do not discriminate against nations in resolving transnational environmental disputes. Those results are contrasted with the results that most recently have been obtained under treaties. This section asserts that the recent approach to the ozone problem establishes unacceptable regimes, under which developing nations are given virtual carte blanche authority, and are actually encouraged by developed nations to pollute and destroy the world atmosphere. Such authority is given at the economic and environmental expense of complying and responsible developed nations.'4 In addition, and perhaps most importantly, it blatantly sacrifices the health and wellbeing of the most vulnerable members of all societies for the sake of a tenuous international consensus.

The article next discusses and rejoins a recent article published in the Tulane Environmental Law Journal that advocates the continuation, and expansion, of favored treatment treaty status for developing nations. The article explores the practical poverty of this work's "entitlement" and "non-compliance" argument, and suggests that the international community should reject these "carrot regimes" in favor of an "environmental policy stick," which is more consistent with the principles of customary international law that prioritize the interests of those who are most susceptible to the consequences of ozone depletion.

Proceeding from the assumptions that activity which is wrong and illegal by developed nations cannot be encouraged or condoned for developing countries, and that the world community owes a special duty to protect its most vulnerable members and its immutably common environmental assets, the article concludes by suggesting that the international community should reexamine the adequacy of disparate international legal regimes, and should continue to address critical issues such as ozone depletion. Indeed, as developing countries continue to demonstrate their true potential for population growth and irresponsible industrial development (and the corresponding environmentally destructive effects,) the international legal community will be forced to reexamine the environmental Orwellian order in which all nations are equal - but some nations are more equal than others.