Two problems: limits to growth and limits to law

The global financial crisis was, and still is, a sustainability crisis. What began as a crisis in the financial sector has rapidly grown into an economic crisis and is still traceable as a social crisis (Stiglitz & UN 2010: 2). The breakdown of banks, economies and social systems revealed the ineffective and destabilizing design of national and global institutions. A stable and balanced global economy needs to focus on sustainable development (Stiglitz 2011). That is the only way to ‘make globalization work’ (Stiglitz 2006). Apart from stable structures for economic transactions, sustainable development encompasses the reduction of poverty and social injustice (Sen 1999) and ecological sensitivity. However, critical commentators on the crisis may be inclined towards neo-classical economic theory, most of them still share its foundation stone: the belief in economic growth.

Infinite economic growth is a myth. Over the last 40 years ecological economists have prominently exposed the ‘limits to growth’ on earth (Meadows et al. 1972; Meadows et al. 2004; Randers 2012). The most obvious of these limits are the scarcity of natural resources and the fragility of the ecosystem. We have just one limited globe to host and feed an increasing world population. As long as we are not able to leave the earth, infinite economic growth is simply not possible. And even as we are finding other planets, growth still is not infinite. Economic growth only seems ‘infinite’ because of our ignorance of its limits. There is nothing wrong with a mythical narrative, as long as it does not harm other people or endanger the development of society.

Infinite economic growth is a dangerous myth. The logic of infinite growth is in itself destructive. Economic growth means expansion (of the economic system) - in whatever form it takes. Expansion always colonizes its environment. By environment, I do not mean nature only. Economic growth affects the natural, cultural and social environment. To acknowledge an ‘end of growth’ means accepting the world as a ‘shrinking pie’ (Heinberg 2011: 189). In a finite world there will be fierce competition for relative growth. Given real limits, relative growth seems nothing more than distribution. And yet there is at least one difference. If the ecosystem collapses, even the relatively biggest economic actors will probably not survive. There is no alternative to changing our economic thinking and institutions.

The only question remains whether this change will come by design or by disaster. Giving up the ‘growth illusion’ (Douthwaite 1992) allows us to openly address the problems of limitation and consciously initiate a ‘turning point’ (Ayres 1998). The path ‘beyond growth’ leads to the idea of sustainability (Daly 1996). Here, sustainability does not represent a supplement, as it is often considered today, but the basic essence of a future society. In its positive version, a ‘sustainable economy’ (SDC 2009) enables ‘prosperity without growth’ (Jackson 2009). The more negative views connect ‘farewell to growth’ with the need for a strict new culture of ‘De-Growth’ (Latouche 2009). We all should become ‘Zeronauts’ (Elkington 2012), restraining our needs to a sustainable global standard. Given its restrictive effects, the turn to sustainability in any case involves fundamental social conflicts. Thus, the design of a sustainable society is an eminent but daunting challenge for the legal system.

The first candidate for sustainability regulation is national public law. Indeed, most of the existing ecological and social protection norms are created within nation states. But national sustainability regulation faces a range of problems. Ecological effects are global. Global warming will change Portugal in the next decades, no matter if the Portuguese, on their own, were to reduce their CO2-emission to zero or not. Single national laws have little influence in isolation. Other ecological examples, like the loss of biodiversity, show the same inter-dependence of all regions of the world. Some ecological effects, like marine pollution or the ozone hole, cannot even be attributed to individual nations. Social effects are global, too. National public law can only balance injustices within the territory of a nation. The products of unfair working conditions and child labour circulate around the world. Millions of refugees leave their countries (not least) for economic reasons.

Another difficulty in regulating most ecological and some social effects is their massive time delay. To achieve sustainable development it is not enough to react. If the Netherlands were to sink because of the rising sea level, it would be too late to regulate global warming by restricting CO2 emissions. Sustainability regulation has to prevent actions and behaviour before the dramatic effects can be seen. As a result, there are few incentives for political leaders and parties to introduce harsh measures for sustainability, thereby annoying future voters. Global and long-established challenges to sustainability point at least to the limits of national public law.

International public law appears to be better at confronting the challenges of sustainability regulation. It is valid internationally and remains at a distance from short-term national politics. Indeed, the United Nations and other international organizations are very active in the global sustainability debate (e.g. UN 1987, 2000a, 2012a, 2012b, 2014b). Especially the upcoming Sustainable Development Goals (SDGs), which are to replace the Millennium Development Goals (MDGs), manifest the international appreciation of sustainability issues (UN 2014a). Yet, there are so far no hard legal results, as fruitless climate conferences demonstrate. From a perspective of rational choice, conflicting interests and burdensome compliance are obvious ‘limits of international law’, as they lack the power to enforce rules (Goldsmith & Posner 2005). Why should developing states agree to strict regulations that hinder their economic growth, if much bigger economies first and foremost endanger global sustainability? International law still serves national interests.

Of course, there are ‘limits to the limits of international law’ (Aaken 2006). The dynamics of international regimes make states comply to a ‘new sovereignty’ (Chayes & Chayes 1995). International law offers procedures which are recognized for reasons of legitimacy and distributive justice (Franck 1995). International law gains force not only from its legal form, but from a background ‘new world order’ of government networks (Slaughter 2004). And yet international law has its own limits. Existing international regimes all follow their own, very different, inbuilt logical systems. Liberal ideas of free trade within world trade law contradict social human rights or environmental protection conventions. International law regimes collide (Fischer-Lescano & Teubner 2004), thereby placing restrictions upon their own power.

The perhaps most serious limit to classical international law is its restricted scope. International law is valid between nations and does not encompass private actors. The real drivers of globalization, however, are not states, but private corporations. Transnational firms exploit mines, build and often run dams or nuclear power plants. Private oil companies drill in deep waters or use fracking. Private investment firms speculate with corn or real estate. Private firms produce, use and often dispose of the plastic which now washes around in the oceans. Transnational corporations transfer their production sites to poor countries and exploit workers to reduce costs. Private actions and transactions have massive ‘externalities’ for a great number of people. National legislators could, of course, regulate these cases, and international institutions could stimulate and control them, but in many cases, and for many reasons, they do not. As a result, the transactions remain private without a public voice for sustainability being expressed.

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