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Framing International Environmental law through the Gender Lens

Anke Stock, Isabelle Sundermann
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In view of the 2022 Declaration, this paper calls for a change of perspective: to frame international environmental law through a gender lens. Over the last several decades, humans have impacted the environment and altered it profoundly. As the reconciliation of the ecosystem with its people is at the core of international environmental law, it is crucial to acknowledge how climate change affects the diverse members of society differently. Gender is often overlooked by policymakers in this regard, even though women make up 75% of people displaced by the impacts of the climate crisis. Moreover, women play an essential role in protecting the environment, as their knowledge of agricultural methods is beneficial to environmental preservation. As the correlation between gender inequality and environmental degradation is undeniable, it is important to shed more light on the gender-environment nexus and subsequently give more legal weight to gender-responsive environmental legislation. Environmental law will only achieve environmental justice once the importance of gender equality is recognised.

Over the past several decades, the environment and human beings have – to varying degrees -, coexisted next to each other, instead of working in unity. As a result, global environmental changes suggest that we may have entered a new human-dominated epoch, the Anthropocene, a geological time in which many conditions and processes on Earth are profoundly altered by human impact (Chirindo/Reyes, 2020: 429). The outcome of this  has been extremely unsatisfying and alarming, as proven by the latest IPCC report. Therefore, the question of how we reconcile the ecosystem with its people is at the core of international environmental lawmaking.

For this, it is crucial to acknowledge that humans have an impact on the environment and vice versa. Secondly, we need to admit that certain groups in society both contribute to and experience the effects of changes to the environment differently. The notion that the climate emergency is attributable to an undifferentiated humanity is anti-ethical to climate justice (Adelman/Kotzé, 2021: 36). The efficiency of international environmental law is therefore crucially dependent on considering and analyzing the positive and negative contributions that diverse members of society have on the environment, as well as identifying how and to what extent environmental changes impact these different social groups, especially those living in vulnerable circumstances. Once these distinctions are made, the biggest challenge of international environmental law will be in regulating how to address and integrate these groups within its legislative regime. They will essentially contribute to how we frame and prioritize environmental legacies and policies (Taylor, 2002). This imperative to balance out environmental and social needs has stimulated many discussions within the forum of international environmental law under the notion of justice.

The question of how we reconcile the ecosystem with its people is at the core of international environmental lawmaking.

1. The Notion of Social Justice within International Environmental Law

The concept of justice is not novel to international environmental law. It is reflected in the principle of sustainable development, which made its debut in the well-known Brundtland-Report in 1987 and was later reaffirmed and established in the Rio Declaration in 1992. In Principle 3 of the latter, it is claimed: “the right to development must be fulfilled as to equitably meet developmental and environmental needs of present and future generations”. The principle has been further enhanced with other soft law instruments such as the Agenda 2021 and again significantly strengthened in 2015 with the Agenda 2030, putting forward 17 goals towards sustainable development. Sustainable development and the concept of justice have also been included in the legally binding Paris Agreement in 2015.­

As of now, the notion of justice has been rooted in the concept of sustainable development and has subsequently been used under various umbrella terms such as environmental justice, intergenerational and intragenerational justice, climate justice, etc. (Barral, 2012: 380f.).  All these concepts rely on the common idea of reconciling the laws and policies on environmental protection with the needs of people being affected by said laws, whether that be present or future generations, people in the Global North or South, rich or poor, men or women or non-binary persons, young or old (Ibid.).

Although the question of environmental justice appears to be at the core of today’s discussions on environmental law, its legal status remains extremely vague. While it is still contested within the international community that the concept of sustainable development is binding law  – mainly due to its ambiguity of what legal obligations it entails precisely – this is even more true for the concept of environmental justice (Teixeira, 2021: 248). Nevertheless, recent climate litigations, such as the Urgenda Climate Case before the Dutch Supreme Court, the Royal Dutch Shell Case before the Supreme Court of the United Kingdom, or the recent ruling of the German Constitutional Court on the German Federal Climate Law, indicate, (in conjunction with international human rights standards), the beginning of a trend towards the recognition of environmental justice, especially intergenerational equity, as a legal duty, at least at a regional level, under international environmental law. This momentum (provided by the national supreme courts) should be seized and reinforced in the 2022 Declaration, helping environmental justice become a binding principle of international law.

The notion of justice has been rooted in the concept of sustainable development, and has subsequently been used under various umbrella terms such as environmental justice, intergenerational and intragenerational justice, climate justice etc.

2. A Mutually Beneficial Relationship: The Gender-Environment Nexus

The identification of existing inequalities within our societies is a first step towards the notion of green, social justice, and the reconciliation of societal needs with effective environmental policies. It immediately becomes clear that due to these inequalities, certain groups within every society are significantly more likely to be negatively affected by both environmental degradation – such as climate change, water scarcity, or natural disasters – as well as by human-made environmental policies. A factor that is often overseen by policymakers despite being proven to be one of the main contributors to environmental-related inequalities and injustice, is gender (UN Women, 2016: 7f).

In many ways, gender and the environment are linked to each other. The gender-environment nexus is multidimensional, however, it can be categorized into two overarching aspects: gender-differentiated vulnerability and integration of women in all their diversity in environmental policy-making processes and decision-making (OECD, 2021). Therefore, the gender-environment nexus describes how environmental occurrences and degradation, such as climate change, impact women and men differently, as well as how the environment can benefit from gender equality.

The specific vulnerability of women in the environmental context can be observed in various areas, such as climate change, biodiversity, water, chemicals, or deforestation. Due to persisting social and traditional norms, women and girls are mostly still responsible for the household and care work. At the same time, most people affected by poverty are women (UNEP 2016: 4), which is why they are usually the first ones to suffer from water and food scarcity or energy poverty (OECD, 2021:162).  Due to structural barriers and systemic discrimination, women also face much higher risks in the event of natural disasters and post-disaster situations. For example, they are often not taught how to swim and therefore face much higher mortality rates than men, or experience sexual violence and exploitation in post-disaster situations (UN Women, 2016: 23). In total, women make up 75% of people displaced by the impacts of climate change and environmental degradation (OECD, 2021: 74).

At the same time, women play an important, proactive role in the protection of the environment and in bringing environmental issues to the center of current national and international policies. It has been found that parliaments with higher female representation generally tend to execute better environmental management and are also more likely to ratify international environmental treaties (­­­­Inter-Agency Task Force on Rural Women, 2012). Parallel to this observation is the fact that gender inequality and environmental degradation often correlate (IPCC, 2014: 808).  Women are also significantly more engaged in environmental activism, such as the Fridays For Future movement (de Moor et al., 2019).  Additionally, men cause on average 8-40% more carbon emissions than women, because of their mobility and dietary habits (Ourkiya, 2021). Moreover, the specific knowledge of women, for example in agricultural methods, is highly beneficial for the preservation and conservation of the environment (OECD, 2021: 151). Being the ones who usually look after the needs of their family and community, women often take on a crucial role in immediate and early post-disaster solution-finding. Yet, they are widely excluded from participation and leadership in pre-disaster risk reductions (UN Women, 2016: 23).

3. Applying a Gender Lens to International Environmental Law

It is time to make full use of the reciprocity of social justice, gender and environment and to unlock their mutual benefits.

Currently, very few hard or soft law sources of international environmental law have considered the gender-environment nexus. Some of those that do include this perspective are the Rio Declaration, the Convention on Biological Diversity, the United Nations Convention to Combat Desertification, or the Sendai Framework for Disaster Risk Reduction. But even when integrated, the issue of gender equality hardly enjoys any proper legal effect or entails specific obligations, because it is only mentioned in the preamble of the document, or it is too broadly and abstractly phrased. Even the Paris Agreement, up to now one of the strongest legally binding instruments of international environmental law, only mentions gender equality vaguely and extremely sporadically. It thus fails to adequately integrate a gender lens on international environmental law. As for case law, to this date, there is not a single landmark decision, both on the national and international levels, recognizing gender as one of the key factors causing environmental injustice – or recognizing the linkage between gender inequality and environmental issues at all. It is more often sources within the framework of gender equality that include the gender-environment nexus. For example, the CEDAW, which published its 37th general recommendation in 2018 on the gender-related dimensions of disaster risk reduction in the context of climate change, or the EU Gender Action Plan III, which addressed the challenges women face due to the impacts of climate change and included recommendations.

In view of the 2022 Declaration, it is therefore essential to shed more light on the gender-environment nexus and to give more political and legal weight to gender-responsive environmental legislation. As seen above, considering both gender and the environment is mutually beneficial to both causes. Therefore, environmental law, whether at the international or national level, will be most successful when framed through a gender lens. The gender lens would affect the means of prioritization, the material content, and the procedural side of international environmental law. This notion should be reflected in the 2022 Declaration.

Once gender equality is recognized as being a prerequisite for environmental justice, more specific obligations should be derived and framed. A helpful tool here could be to enrich environmental impact assessments with a gender lens. This would help to collect more data on the linkage of environment and gender as well as to prevent mutual detrimental impacts.  Likewise, other factors, which can intersect with gender and/or environment, such as age, geographical location, ethnicity, and wealth, should be considered in order to be most efficient. It would furthermore be important to consider gender issues in the context of green financing, as women are often excluded from receiving such benefits or even being considered, due to the lack of inclusion in decision-making as well as other economic, social, or legal barriers. The empowerment and integration of women in decision-making, pre- and post-disaster solution finding, and other leadership positions at regional, national, and international levels, is another key tool for making environmental policies most efficient and socially just. It is time to make full use of the reciprocity of social justice, gender, and environment and to unlock their mutual benefits.