Negative Environmental Sovereignty in the Third World : A Twail Analysis of ICSID's Disregard for Environmental Justice in the South

Environmental justice is a notion coined in the U.S. in an attempt to protect the environments of minorities whose neighbourhoods had been used to store hazardous waste. Attempts have been made to evolve this concept on a global scale to protect the environments of periphery nations around the globe, whose environments have become dumpsites for the consequences of industrialization in the West. For example, industrial waste from the U.K. has been found in Guinea, U.S. industrial waste has been found in Zimbabwe, Italian industrial waste has been found in Nigeria, as it is more cost effective to store hazardous industrial waste in a Third World country, than in a Western-industrialized country, due to more stringent environmental policies in the latter. Likewise, there are numerous other Third World countries, which currently harbour industrial waste originating in the West. Harnessing insights from third world approaches to international law (TWAIL), one notices that the 1989 Basel Convention like other regimes of International law has proven to be unfruitful in protecting the environments of Third World peoples. More importantly, it is one thing for a private entity to conclude an agreement with a private person or with a corrupt government official in the Third World, to harbour industrial waste within the borders of his country; yet it is a totally different matter for an international investment arbitral tribunal to disregard a sovereign State's attempts to protect its environment for the welfare of its people, to secure the interest of foreign investors, as ICSID did in relation to Mexico the Tecmed Case. As draconian as this seems, this is might come as no surprise to those who recall the World Bank Memorandum, where Lawrence Summers, then chief economist, openly endorsed the dumping of hazardous waste in developing countries