Scholtz, Werner --- "A Sustainable and Equitable Legal Order" [2011] ELECD 647; in Benidickson, Jamie; Boer, Ben; Benjamin, Herman Antonio; Morrow, Karen (eds), "Environmental Law and Sustainability after Rio" (Edward Elgar Publishing, 2011)

Book Title: Environmental Law and Sustainability after Rio

Editor(s): Benidickson, Jamie; Boer, Ben; Benjamin, Herman Antonio; Morrow, Karen

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9780857932242

Section: Chapter 8

Section Title: A Sustainable and Equitable Legal Order

Author(s): Scholtz, Werner

Number of pages: 19

Extract:

8. A sustainable and equitable legal
order
Werner Scholtz

1. INTRODUCTION

The world is characterised by enormous disparities between developing and
developed states (Anand, 2004, p. 103; Johnston, 1998­1999, p. 36;
Kingsbury, 1998, p. 599). The existing inequality in the distribution of
desired goods between states has resulted in demands by the developing
states that the formal sovereign equality 1 of states must be extended to
incorporate material equality through recourse to equitable measures
(Simpson, 2004, p. 39). Thus, the developing states demanded the
establishment of a New International Economic Order (NIEO). The NIEO,
requiring the pursuit of distributive justice, could result in the birth of a more
just world (Franck, 1995, p. 47). 2 International law, however, has never been
transformed pursuant to equity as desired by developing states (Mickelson,
2000, p. 64). 3 Lately, the grievances of the economically disadvantaged have
been supplemented by a rising concern regarding the circumstances of future
generations. This concern is referred to in international environmental law as
`intergenerational equity'. Intergenerational equity also has links with the
notion of distributive justice. Some of the primary principles of the NIEO
have experienced a revival in the field of international environmental law.
Thus, it is of interest to determine whether and how the concerns pertaining
to future generations may present opportunities to diminish inequality and
increase equity between developed and developing states.
Section 2 of this chapter briefly introduces the notion of equity in
international law. Equity and the primary principles of the NIEO ...