Winning pieces of student competition Philosophy and Ethics of International Law

Student climate strikes are not just a call to morality, they invoke a legal principle

Written by Laura Hildt

Students are protesting for governments to face the facts and the impact climate change will have on their future and demand the seriousness and urgency of climate change be reflected in government policies.

From a moral standpoint, the argument seems clear: you, the older generation, have caused climate change to get this far without fighting it adequately, now you have to take action so that we, the young, can have a future on this planet under equal opportunities.

However, this is not merely a moral argument but a long-standing legal principle that should not come as a surprise to governments. Inter- and intra-generational equity has been an international environmental law principle since its inclusion in the 1972 Stockholm Declaration. The core of the principle can be summarised as an obligation on the present generation to protect the environment to ensure the needs of younger and future generations.

The principle cannot only be found in international treaties on climate change and biodiversity or resolutions such as the Stockholm and Rio Declaration or the Paris Agreement, but is also reflected in the Agenda 2030 and its Sustainable Development Goals.

The term sustainable development dominates today’s international environmental agenda, focussing on protecting the planet for humanity rather than for its own sake. Going back to 1987, the Brundtland Commission defined sustainable development as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” Put differently, the older generation is both a beneficiary and trustee of the planet, which ties in neatly with inter- and intra-generational equity.

Yet, while a legal principle, it remains unclear what this equity demands. We may turn back to morality, using conceptions of fairness and justice, to help determine where on the spectrum between the bare minimum to survive, and the same (or better?) conditions than those of the older generation, equity should lie.

Using John Rawls’ veil of ignorance from his Theory of Justice, we imagine an original position where none of us knows their place in society, their status or any other attributes about themselves such as the generation they are born into. Under this veil of ignorance, blind from self-interest, we would decide against unjustified preferences and want all generations to have equal opportunities. In the context of environmental equity, justice requires a planet in at least the same conditions the previous generation found it in, one where the next generation can prosper and live sustainably and a planet in which the older generation takes the concerns of the young seriously. No one under the veil of ignorance would want the next generation to only have the bare minimum to survive because you could be in that very generation, or even the generations that come after it.

While “Intra-generational equity now” may not be the catchiest slogan for a protest banner, it gives legal backing to the student strikes and allows us to think normatively about how existing legal principles should be applied.

'Women and Children first' should not be the approach to migrant detention

Written by Emmi Beuger

When a ship is sinking, women and children are evacuated first. This phrase “women and children first” has been reflected in public discourse about migrant detention.

In response to the Australian government’s detention of migrants on islands, protestors in December demanded that children be taken off the island Nauru. The government separates men from women and children, detaining them on separate islands. This month, the government announced plans to take the remaining children off of Nauru and resettle them. This is a victory for human rights, but one must reflect on the position of children and women to advance human rights for all migrants.

Feminist scholars argue that women have a unique experience within the international context due to the prioritization of men under the law. Women and children are frequently portrayed as victims in international law, a construct feminist scholars seek to dismantle, and is the case in migration detention. Yes, children are vulnerable, and this should be addressed through the special protections that they are given under conventions such as the Convention on the Rights of the Child, to which Australia is a party. This Convention is not meant to elevate the rights of children above the rights of others, but to recognize and accommodate the differences between children and adults.

 The victimization of women and children can lead to the belief that they are more deserving of proper human rights protections and treatment in detention. Anne Orford, a feminist scholar, argues that the unequal treatment of women needs to change, but caution is needed when approaching it. Placing women and children above men while trying to ensure human rights in detention runs the risk of allowing continued human rights abuses against others. 

All humans are entitled to human rights protections just by nature of being human. Conventions that are specifically designed for women and children provide extra safeguards for them due to their status, but by focusing on the human rights abuses against women and children, there is the risk of leaving out other populations that may fall outside these categories, such as men and non-binary individuals. Men and non-binary individuals are not only humans, but they may also be parents and family members. They deserve empathy and the protection of law. To address human rights abuses in migration detention, there must be a focus on underlying principles and rights of all humans. Men separated from their families on an island deserve the same rights as the women separated from theirs.

“Women and children first” is actually a myth, which may be a good because it simultaneously implies the women are weaker and that men’s lives are worth less. Emphasizing the ill-treatment of women and children, without also acknowledging the ill-treatment of others, will not help change the power dynamics in international law that feminist scholars seek to change. When the international community wants to save "women and children first", nobody wins in the long-term.

Business and human rights treaty drafters must stop pandering to corporations by focusing on what is just, rather than what is ‘feasible’

It is time to oblige, rather than encourage, corporations to respect human rights

Written by Stephanie Triefus

A new international treaty is being drafted to regulate the responsibilities of corporations to respect human rights. Sounds promising, but here’s the catch – under the current draft, corporations will not be subject to binding obligations.

This is another disappointing yet unsurprising chapter in the book of deeply embedded structural inequalities in international law. The international system is set up to privilege Western interests, which include corporate impunity for human rights abuses committed in the Third World (a term embraced by critical scholars for its opposition to the European ‘First World’).

International law, with its roots firmly planted in colonialism, continues to entrench global injustice today. Scholar Anthony Anghie in his book Imperialism, Sovereignty and the Making of International Law elucidates how the economic interests of Western colonisers underpinned early international lawmaking with regard to private companies. In the 1950’s, oil companies were able to keep hold of the natural resources of states emerging from colonisation, such as Qatar and Libya, through arbitral decisions removing such contracts from the purview of domestic law. Corporations were given quasi-sovereign status, while the states themselves had their bargaining power as a sovereign entity negated, to the extent that there was a “real reduction of the powers of the sovereign Third World state with respect to the Western corporation”.

This dynamic continues today, with the World Bank and the International Monetary Fund requiring Third World states to open up their economies for Western corporate plundering in order to qualify for loans: Loans which are needed to pull their economies out of the depths caused by colonial plundering and post-colonial civil war. The deliberate and vicious circle continues.

The narratives surrounding the business and human rights treaty initiative cannot and should not be divorced from this story of power and subjugation. Reluctance to impose binding human rights obligations on corporations is framed in terms of concern that direct obligations would be incompatible with state-centric international law, or could weaken human rights frameworks, but these concerns have been debunked. The argument, then, is that a treaty with less bite is more politically ‘feasible’.

Anything short of imposing binding obligations directly on corporations, backed up by a strong enforcement mechanism, will be nothing but a reinforcement of existing structural inequality. The Third World will continue to have little leverage with which to hold corporations to human rights standards and victims of human rights abuses no impartial forum to which they can bring complaints. Civil society organisations have been a driving force behind moving UN discussions on business and human rights in the direction of a binding treaty. We must stand up and show our support for their fight to ensure drafters do not proceed with what is feasible at the expense of what is just.

Stephanie Triefus is a human rights student and former corporate lawyer based in Utrecht, Netherlands