Our Earth Matters: Pathways to a Better Common Environmental Future 1643681788, 9781643681788

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OUR EARTH MATTERS

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Our Earth Matters Pathways to a Better Common Environmental Future

Edited by

Bharat H. Desai Professor of International Law and Jawaharlal Nehru Chair in International Environmental Law, Centre for International Legal Studies, School of International Studies, Jawaharlal Nehru University, New Delhi

Amsterdam  Berlin  Washington, DC

© 2021 The authors and IOS Press. All rights reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without prior written permission from the publisher. ISBN 978-1-64368-178-8 (print) ISBN 978-1-64368-179-5 (online) Library of Congress Control Number: 2021938855 doi: 10.3233/STAL9781643681795 This volume contains the articles previously published in the journal Environmental Policy and Law 50 (6) 2020 and 51 (1–2) 2021. Publisher IOS Press BV Nieuwe Hemweg 6B 1013 BG Amsterdam Netherlands fax: +31 20 687 0019 e-mail: [email protected] For book sales in the USA and Canada: IOS Press, Inc. 6751 Tepper Drive Clifton, VA 20124 USA Tel.: +1 703 830 6300 Fax: +1 703 830 2300 [email protected]

LEGAL NOTICE The publisher is not responsible for the use which might be made of the following information. PRINTED IN THE NETHERLANDS

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Preface The 50th anniversary of the iconic journal Environmental Policy & Law (EPL) took shape in 2020 amid the global disruption and trauma caused by the Covid-19 pandemic. After consultation, Marten Stavenga, a colleague at IOS Press, accepted my idea for a Special Issue of EPL to mark this milestone, and invited me to be the Guest Editor on 8 August 2020. Thus, I embarked on the task of an EPL Special Issue with the theme: Our Earth Matters: Pathways to a Better Common Environmental Future. This was followed first by IOS Press placing their trust in me as Managing Editor and then as Editor-in-Chief of EPL. Editorship of a journal, like any scholarly work, builds on the shoulders of previous contributors, so it is with due humility that I don this new mantle. The quick follow up by IOS Press with this book as a sequel to the EPL appointments has proved to be an unexpected boon. Hence, as a corollary to my two decades of scholarly works on global environmental governance, the new role has set me on the wider path of finding scholarly and policy-relevant answers to the global environmental crisis arising from the human developmental predicament that imperils our only abode of planet earth. Our Earth Matters With regard to this offering of Our Earth Matters, it is pertinent to recall my early publication, as a doctoral scholar, on “Destroying the Global Environment” (International Perspectives, Ottawa, Nov./Dec. 1986, pp.27-29). This sought to underscore that the “human quest for development seriously threatens our fragile ecosystem”. As a consequence, global environmental regulatory process has come a long way since the warning bells rung by such works as Rachel Carson’s classic Silent Spring (1962), the Club of Rome’s report on The Limits to Growth (1972), Richard Falk’s This Endangered Planet (1972) and Barbara Ward & Rene Dubos’s Only One Earth (1972), which preceded the first UN Conference on the Human Environment (Stockholm, 1972). In the same vein, Our Earth Matters, modestly seeks to present prognoses and prospects prior to Stockholm+50 (2022). Anthropocene Epoch On 21 May 2019, it was officially recognized that we now live in the Anthropocene, our earth’s new geological epoch, named for the 'unmistakable imprint of human activities'. That in turn calls for a new human prism for the care, maintenance and trusteeship of the planet. It makes this an appropriate occasion to reflect upon the course traversed in the past 50 years and to look ahead in an effort to seek answers for a better, common environmental future. What lies in store for us in the rest of the 21st century and beyond? How can we manage our profligate life styles, resource-heavy extraction-based production processes and wasteful patterns of consumption in such a way as to not endanger the survival of life on planet earth in general and the future of humankind in particular? This calls for serious prognoses to make sense of the concerted, global environmental law-making and institution-building processes, comprising normative approaches at work, the global conferencing technique followed by the UN General Assembly (1972, 1992, 2002, 2012 and the forthcoming event in 2022), application and efficacy of the basic legal underpinnings of international law to environmental challenges, actual working of the giant treaty-making enterprise, and the quest for a robust global environmental-governance architecture. Our Predicament We are now close to the 50th anniversary of the 1972 Stockholm Conference in June 2022. This will be yet another defining moment for a future vision to make sense of the perennial “predicament of mankind”, the need to “devise effective responses” for the “world problematique” (The Limits to Growth, 1972). In turn,

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it calls for an honest assessment of what we have attained in the last 50 years of regulatory processes, use of innovative tools and techniques, and the art and craft of lawmaking. Have these brought about a change in human mindsets? How can we jettison human greed and define our needs? What might be the new ideas, approaches, processes, regulatory tools and institutional structures that will address the global environmental problematique which continues to haunt us? Exploring Future Pathways It is against this backdrop that this book comprises invited perspectives from outstanding scholars from the five continents to probe the existing global approaches, regulatory processes, and instruments for the protection of the global environment. It enjoins us to ponder our reckless destruction of wild spaces, endangering of plant and animal species, poisoning of land, atmosphere, water resources and the oceans (now predicted to contain more plastic than fish by 2050), melting of the polar ice caps and unsettling of our essential ecological processes. Our eminent contributors have sought to explore answers to the existential environmental crisis under four headings: Prognoses; Processes; Problematique and Prospects. Notwithstanding our best efforts, it has not been possible within the constraints of time and space to cover all major areas of global environmental concern. Some colleagues were obliged to drop out for compelling personal reasons, but fortunately it has been possible to fill these gaps at the last moment. It is indeed heartening – nothing short of a miracle – to publish this audacious work amid the unprecedented Covid-19 global disruption of 2020-2021. I am deeply grateful to all those contributing scholars and practitioners who have made this possible; it shows that there may be ‘limits to growth’, but there are no limits to the human zest and capacity to overcome the worst. It is this that provides us with a beacon of hope for the future. The primary objective of Our Earth Matters has been to sensitize the global audience, firing the imagination of scholars and decision-makers to re-examine the current global approaches to these problems and explore the future trajectory with new ideas, tools, techniques, processes, frameworks and international environment governance architecture. This book is a modest effort to challenge those who formulate international law and diplomacy to look ahead into the 21st century and beyond. IOS Press colleagues deserve deep gratitude for making publication of this book possible. I humbly dedicate this collective work to the quest for a better common environmental future. Bharat H. Desai Editor

Earth has enough for everyone's need, but not for anyone's greed Mohandas K. Gandhi

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List of Contributors Aguila, Yann – Partner at Bredin Prat, Director General of the Global Pact Coalition, Paris, France Chami, Lionel – Special Advisor, Global Pact Coalition, Paris, France Christiansen, Liv – Research Associate and Ph.D. candidate at the Walther Schucking Institute for International Law at Kiel University, Kiel, Germany Bosselmann, Klaus – Director, New Zealand Centre for Environmental Law, University of Auckland, New Zealand Brown Weiss, Edith – University Professor, Georgetown University, Washington, D.C Desai, Bharat H. – Professor of International Law and Jawaharlal Nehru Chair in International Environmental Law, Centre for International Legal Studies, School of International Studies, Jawaharlal Nehru University, New Delhi; Editor-in-Chief, Environmental Policy & Law. Fauchald, Ole Kristian – Professor, Faculty of Law, University of Oslo, Norway Freestone, David – Visiting Scholar, George Washington University Law School; Executive Secretary, Sargasso Sea Commission, Washington, DC, USA Kim, Rakhyun E. – Assistant Professor of Global Environmental Governance, Copernicus Institute of Sustainable Development, Utrecht University, The Netherlands Kotzé, Louis J. – Research Professor, North-West University, South Africa; Senior Professorial Fellow in Earth System Law, University of Lincoln, United Kingdom Mahmoudi, Said – Professor Emeritus of International Law, University of Stockholm, Sweden Matz-Luck, Nele – Co-Director of the Walther Schucking Institute for International Law at Kiel University and Professor of Public Law at Kiel University Law School, Kiel, Germany Maurer, Peter – President, International Committee of the Red Cross, Geneva, Switzerland McIntyre, Owen – Professor and Co-Director for the Centre for Law & the Environment, School of Law & Environmental Research Institute, University College Cork, National University of Ireland, Cork, Ireland Mercure, J.-F. – Senior Lecturer in Global Systems, Global Systems Institute, University of Exeter, UK; Fellow, Cambridge Centre for Environment, Energy and Natural Resources Governance (CEENRG). Mrema, Elizabeth Maruma – Executive Secretary, Secretariat of the Convention on Biological Diversity, Montreal, Canada Robinson, Nicholas A. – University Professor on the Environment and Gilbert and Sarah Kerlin Distinguished Professor of Environmental Law Emeritus, Pace University School of Law, New York, USA; Executive Governor, International Council of Environmental Law. Rose, Gregory L.– Professor, School of Law, University of Wollongong, Australia Ruppel, Oliver C. – Professor of Public and International Law and Director, Development and Rule of Law Program (DROP), Stellenbosch University, South Africa. Sand, Peter H. – Institute of International Law, University of Munich, Munich, Germany Schrijver, Nico J. – Professor Emeritus of Public International Law, Grotius Centre for International Legal Studies, Leiden University; State Councillor, Council of State, the Netherlands Sundstrom, Anna – Secretary General, Olof Palme International Centre, Stockholm, Sweden Viñuales, J.E. – Harold Samuel Professor of Law and Environmental Policy, University of Cambridge, UK; Founder and former Director of the Cambridge Centre for Environment, Energy and Natural Resources Governance (C-EENRG).

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Contents Preface Bharat H. Desai List of Contributors

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PART I. PROGNOSES The Future of the Planetary Trust in a Kaleidoscopic World Edith Brown Weiss Exploring the Analytical, Normative and Transformative Dimensions of Earth System Law Louis J. Kotzé and Rakhyun E. Kim Making Environmental Law Function in the Anthropocene Nicholas A. Robinson The Framework of Ecological Law Klaus Bosselmann

3 11 25 33

PART II. PROCESSES International Environmental Law-Making Bharat H. Desai Pathway to Reframing Environmental Law J.E. Viñuales and J.-F. Mercure UNGA as the Anchor: Global Environmental Conferencing Nele Matz-Lück and Liv Christiansen A New Environmental Charter for the Future Yann Aguila and Lionel Chami

43 63 73 85

PART III. PROBLEMATIQUE Climate and Its Skeptics: Whither Protection of the Atmosphere? Peter H. Sand State Sovereignty in the Planetary Management of Natural Resources Nico J. Schrijver Protecting the Natural Environment in Armed Conflict Peter Maurer Towards the New Post-2020 Global Biodiversity Framework Elizabeth Maruma Mrema Can We Save the Blue Half of Our Planet? David Freestone New Approaches for International Water Resources Owen McIntyre Soil Protection and the Right to Food for a Better Common Future Oliver C. Ruppel Time for a Protocol on Transnational Environmental Crime? Gregory L. Rose

97 105 113 117 127 135 149 167

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PART IV. PROSPECTS Looking Through Palme’s Vision for the Global Environment Anna Sundström Peacebuilding Functions of International Environmental Governance Ole Kristian Fauchald A New Mandate for the Revived UN Trusteeship Council Bharat H. Desai A UN Specialized Agency for the Environment Said Mahmoudi ICTs as the New Environmental Sentinels Bharat H. Desai Subject Index Author Index

175 183 189 203 213 227 229

PART I: PROGNOSES

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Our Earth Matters. B.H. Desai (Ed.) IOS Press, 2021 © 2021 The authors and IOS Press. All rights reserved. doi: 10.3233/STAL210003

The Future of the Planetary Trust in a Kaleidoscopic World Edith Brown Weiss∗ University Professor, Georgetown University, Washington, D.C., USA

Abstract. Today, it is evident that we are part of a planetary trust. Conserving our planet represents a public good, global as well as local. The threats to future generations resulting from human activities make applying the normative framework of a planetary trust even more urgent than in the past decades. Initially, the planetary trust focused primarily on threats to the natural system of our human environment such as pollution and natural resource degradation, and on threats to cultural heritage. Now, we face a higher threat of nuclear war, cyber wars, and threats from gene drivers that can cause inheritable changes to genes, potential threats from other new technologies such as artificial intelligence, and possible pandemics. In this context, it is proposed that in the kaleidoscopic world, we must engage all the actors to cooperate with the shared goal of caring for and maintaining planet Earth in trust for present and future generations. Keywords: Intergenerational equity, natural resources, planetary trust, kaleidoscopic world, national security

In 1984 I published an article in the Ecology Law Quarterly entitled, “The Planetary Trust: Conservation and Intergenerational Equity,” which proposed that “the human species holds the natural and cultural resources of the planet in trust for all generations of the human species... This planetary trust obligates each generation to preserve the diversity of the resource base and to pass the planet to future generations in no worse condition than it receives it. Thus, the present generation serves both as a trustee for future generations and as a beneficiary of the trust.” My book In Fairness to Future Generations, published by the United Nations University and Transnational Publishers, 1989, further developed the concept of the planetary trust,1 a concept that recognizes that we all share one Earth and have a fiduciary obligation to conserve it for future generations. It rests on a normative framework in ∗ Corresponding

getown.edu.

author. E-mail: [email protected]

which the present generation serves both as a trustee for future generations and as a beneficiary of the trust. In fulfilling our role as trustees, we can draw upon normative teachings shared by nearly all cultures concerning intergenerational cooperation and conflict. Principles of intergenerational equity are at the heart of the trust. Intragenerational equity flowing from the trust applies to the present generation as beneficiaries.

1. Idea of Planetary Trust When the planetary trust was conceived, States had begun to recognize that we have Only One Earth, the title of the 1972 book by Barbara Ward and Ren´e Dubos.2 Pollution of air, water, land and oceans was evident, as was destruction of biodiversity and contamination of soils, but States were only beginning to address these issues, in part through the newly established United Nations Environment Programme. Recognition of climate

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change was still in its infancy, as was the understanding of the role of economics and politics in environmental issues. The Villach, Austria, meeting of climate experts took place in 1985 and the Intergovernmental Panel on Climate Change (IPCC) was formed only in 1988. It was not yet clearly established that human activities could wreak irreversible damage to the whole Planet. Today it is evident that we are part of a planetary trust. In the emerging Anthropocene Epoch, humans are the dominant force of nature. We are shaping the planet on a geological scale and doing so rapidly. The carbon, nitrogen and hydrological cycles are accelerating. Biodiversity is rapidly declining, with one million species of animals and plants threatened with extinction, many within a decade.3 Oceans and fish stocks are threatened, and coral reefs are dying. Our planet is warming at a rate that could lead to the crossing of thresholds that could produce catastrophic changes. In addition, we face a higher threat of nuclear war, cyber wars, and threats from gene drivers that can cause inheritable changes to genes, potential threats from other new technologies such as artificial intelligence, and possible pandemics. The threats to future generations resulting from human activities make applying the normative framework of a planetary trust even more urgent than in past decades. Because we are an integral part of the Earth, we can cause irreversible damage to its integrity and resilience unless we act on the basis that we hold it in trust for future generations with limits to our use today. We need to ensure the survival of our Planet and provide a robust human environment for all peoples. I would argue that all States and peoples now recognize that we share a common home, and that the question is how to use it for their own benefit and at the same time protect it for the future. 2. Revisiting the Planetary Trust Conserving our Planet represents a public good, global as well local. Initially, the planetary trust focused primarily on threats to the natural system of our human environment such as pollution and natural resource degradation, and on threats to cultural heritage. The trust inherently covers all actions that can affect the sustainability of the planet. As we look to the next fifty years, though, we need to revisit the scope of the planetary trust to

encompass explicitly other diverse and increasing threats to our planet, such as from nuclear and other weapons, biotechnology, cyber technology and artificial intelligence. These will affect our human environment and the health of the planet. We also need to emphasize that the reach of the trust extends to local actions that have broader effects. The lesson of the last fifty years is that increasingly what happens at the local levels can have large-scale, even global effects. For example, policies on energy sources and energy use affect the viability of the planetary trust. Corporate practices regarding energy resources and use have potentially long-term and intergenerational implications. Taken individually, they may not have long-term effects. Taken cumulatively and across the planet, they do. The world today is far different from that of fifty or even thirty years ago, when our initial legal instruments to address environmental change were developed. Information technology has enabled what I have termed a kaleidoscopic world, with rapid change, new and challenging problems, many diverse actors, and fluctuating patterns of interaction among the actors.4 This complicates efforts to conserve our planet. Governments, private sector businesses, formal and informal groups and networks, and billions of people can communicate instantaneously across the world. For example, Tumblr hosted 506 million blogs as of August 2020.5 Over 409 million people view more than 20 billion pages of WordPress each month; WordPress blogs are written in over 120 languages.6 Over 5.2 billion people use a mobile phone today; and Twitter recorded an average “monetizable daily active usage” of 186 million during the second quarter of 2020.7 Information technology enables bottom-up empowerment. Many actors in addition to States can undertake initiatives for sustainable use and conservation, organize coalitions to build pressures on others to do so, and help monitor actions of others. This promises many benefits. But at the same time, information technology has facilitated those groups and individuals who actively want to oppose environmental goods or to undermine the rule of law, which is detrimental to working for a public good. The anarchic features of the kaleidoscopic world make implementing the public good of protecting the planet quite challenging. At the moment, the future of the planetary trust seems increasingly dire. Countries are largely

E.B. Weiss / The Future of the Planetary Trust in a Kaleidoscopic World

focused on short-term problems and national actions. Research suggests that people cooperate only when they are locked together in the same environment over time and must confront the shadow of the future.8 To avoid situations from getting worse or to obtain benefits that they cannot capture individually, they turn to cooperation. For the planet, this means that when people realize that they have to cooperate to avoid dire consequences to the planet, they may then be willing to take needed steps from which others will also benefit. So long as States view the situation as a zero-sum game, as has been the custom in matters of national security, this will not happen. 3. The Record in Implementing the Planetary Trust The question is whether the past offers some hope for the future. Here, significant developments in the last two decades in considering future generations and intergenerational equity, the foundation of the planetary trust, offer hope. These have taken place in judicial litigation, institutional arrangements within or among countries, national constitutional provisions, national legislation in a specific sector such as mining, international initiatives, and high-level reports and other documents.9 Nongovernmental organizations, religious bodies, and the private sector have contributed significantly. They point the way to enlisting everyone to conserve our shared inheritance. 4. Judicial Litigation The International Court of Justice explicitly referred to the interests of future generations for the first time in its 1996 Advisory Opinion on the Use of Nuclear Weapons when it referred to “generations unborn” as being affected by nuclear weapons.10 Individual judges have invoked intergenerational equity in concurring and dissenting opinions, beginning in 1993 in Denmark v. Norway in then Judge Weeramantry’s concurring opinion.11 In both the Pulp Mills Case on the River Uruguay in 2010 and the Whaling in the Antarctic case in 2014, Judge Canc¸ado Trindade discussed intergenerational equity.12 In the latter case, he observed that “intergenerational equity marks presence nowadays in a wide range of instruments of international

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environmental law, and indeed of contemporary public international law.”13 The Inter-American Court of Human Rights has also raised the interests of future generations in its cases regarding the rights of indigenous peoples and transmitting their inheritance to future generations.14 The most significant judicial advances in implementing planetary trust and intergenerational equity have come in national and subnational courts or in environmental courts in countries. National courts in more than 20 countries have invoked intergenerational equity or considered the interests of future generations in reaching their decision. The cases stretch across Europe, South Asia, Africa, Latin America and North America.15 A central goal of such litigation is to bring about change – in climate related policies, in sectors such as mining, or in protection of biodiversity, as in the Amazon. Litigants have had some success both on procedural issues, such as standing to sue,16 and on substantive issues. In the climate cases, for example, the Supreme Court of The Netherlands ordered the government to reduce by 2020 GHG emissions by 25% of the 1990s levels, while the Lahore High Court in Pakistan ordered the creation of a Commission on Climate Change.17 Cases in India and in Colombia merit special attention because of the actions that the Supreme Courts ordered for mining and for protection of biodiversity. In 2014 in a mining case in the State of Goa, the Supreme Court of India required as a condition to mine that a trust fund be established for the benefit of future generations and ordered the creation of Committee of Experts to find an appropriate ceiling for the annual excavation of iron ore to ensure the resources were available into the future.18 In August 2017, the Supreme Court issued an historic judgment in a large-scale mining case in Odisha in which it ordered the Government of India to issue a new National Mineral Policy.19 The new policy (2019) provides that “natural resources, including minerals, are a shared inheritance (italics added) where the State is a trustee on behalf of the people”, includes a new section entitled “Intergenerational Equity,” and establishes an Inter-Ministerial body to institutionalize sustainable mining “keeping in mind the principles of sustainable development and intergenerational equity.”20 In Colombia, the Supreme Court found that the Colombian government had not effectively tackled the problem of Amazon deforestation, despite

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international commitments and national legislation. In its judgment, the Court ordered the Presidency of the Republic, the Ministry of Environment and Sustainable Development, and the Ministry of Agriculture and Rural Development to formulate an Intergenerational Pact for the life of the Colombian Amazon. The Court expressly noted that “natural resources are shared by all inhabitants of Planet Earth, and by their descendants or future generations who do not yet have a physical hold of them, but who are tributaries, recipients, and owners of them,”21 One of the most recent developments is that lawsuits are now being filed against private companies for contributing to global environmental problems. In the United States, Germany and other countries, the litigation extends to holding companies responsible for contributing to climate change. United States litigation has focused on suing Exxon, a major fossil fuel company. A majority of suits against Exxon and other fossil fuel companies have been brought by states and cities, which have filed five new lawsuits in 2020 against fossil fuel companies for contributing to the impacts of climate change.22 Shareholders of ExxonMobil have also initiated suits against directors of the corporation, alleging violations of federal securities law, breach of fiduciary duty, waste of corporate assess, and unjust enrichment. 23 Many more cases could be cited as examples of using the courts to implement the planetary trust and to have the private sector act consistently with it. In some of these, the courts rely on national or state/provincial legislation. In others they rely on Constitutional provisions in their country. National legislation in some countries explicitly recognizes future generations. For example, Burkina Faso created a Fund for Future Generations as part of its law on sustainable development (2014).24 The Philippines Environmental Policy (1977) recognizes the role of the government and present generations as guardians and trustees of the environment for future generations.25 Wales enacted a Well-Being of Future Generations Act (2015), which established a Commissioner for Future Generations.26 Australia and New Zealand have legislation addressing intergenerational equity.27 These are but a handful of examples. Increasingly national constitutions include provisions relating to future generations and to implementing the planetary trust. As of 2019, the constitutions of at least 55 States have provisions

relating to future generations. Many provide for obligations to future generations; some refer to rights of future generations. Several invoke the concept of a trust. Bhutan’s Constitution, for example, states that “[e]very Bhutanese is a trustee of the Kingdom’s natural resources and environment for the benefit of the present and future generations.”28 The Constitution of Papua New Guinea 1975 (rev. 2016) expressly notes that natural resources and the environment are held “in trust for future generations.”29 One of the more recent developments is the recognition by several national and subnational courts of the rights of nature, namely rivers and forests, and a willingness to grant standing to representatives of those rights. This can be a means for implementing the planetary trust. The Supreme Court of Colombia recognized the Colombian Amazon as a “subject of rights”, entitled to protection, conservation, maintenance and restoration led by the State and territorial agencies.30 After over a hundred years of legal battles over the status of the Whanganui River, New Zealand recognized the Whanganui River as having rights, because it has special significance for the Maori people.31 At least one country (India), however, has rejected recognizing a right for a river, namely for the Ganges and the Yamuna rivers, for a river is inanimate.32 The movement to recognize rights of nature extends beyond the courts. The Draft Universal Declaration on the Rights of Mother Earth recognizes the rights of the Earth as a being.33 In Latin America, Ecuador’s Constitution recognizes and provides for the protection of the rights of nature,34 and Bolivia has passed legislation in 2020 on the Rights of Mother Earth.35 The emerging willingness to accord rights to nature is significant for implementing a planetary trust because this approach posits that while we are part of the natural system, the system itself is entitled to protection. It expands the notion of what it means to be a trustee for the planet for future generations. 5. Implementing Institutions The interests of future generations are normally not considered in decision-making today. They need to be. The high-level Oxford Martin Commission for Future Generations, acknowledging the failure

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of decision-makers to consider future generations, developed recommendations for sustainable long-term decision-making.36 Governmental institutions that explicitly consider future generations have emerged in some countries. The Network of Institutions for Future Generations, established after an international conference in Budapest, Hungary, in 2014, has compiled a list of these institutions, both past and present.37 The institutions take different forms: an Ombudsperson for Future Generations tied to national parliaments (Hungary and Israel), a Council for the Rights of Future Generations (briefly in France), a parliamentary Committee for the Future (Finland), the Authority for Sustainable Development and the Rights of Future Generations (Tunisia) and a Commissioner for Future Generations (Wales). Such institutions have faced various political and other obstacles, but the bottom-up pressures that brought them into existence persist. Proposals for international institutions that consider the interests of future generations and implicitly the planetary trust have been part of the international dialogue since the preparatory meetings for the Rio + 20 Conference in 1992. The 2013 Report of the United Nations Secretary-General on Intergenerational Solidarity set forth international institutional options for considering the interests of future generations.38 There have been other notable proposals, including that of the Mary Robinson Foundation for Climate Justice for a Guardian for Future Generations in the United Nations. 6. Nongovernmental Organizations and Civil Society Nongovernmental organizations have been at the forefront in pushing for considering the interests of future generations in our planet. The renowned Jacques Yves Cousteau attracted five million signatures for a Bill of Rights for Future Generations, which he presented to the 1992 Rio Conference on Environment and Development.39 His work led in significant part to UNESCO’s Declaration on the Responsibilities of the Present Generations Toward Future Generations.40 Many other civil society organizations, particularly the World Futures Council, have been actively striving for more than a couple of decades to advance the agenda of protecting future generations. The more recent Goa Foundation in India, which is focused on

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mining, is at the same time addressing the revamping of our economic system to consider future generations. Some parts of the private sector, especially in Europe, have taken measures to consider long-term threats, including banks and industries such as those advocating for alternative energy resources. A concern for the future has attracted high-level attention in the last decade, as reflected in The World Economic Forum’s establishment of a Network of Global Futures Council to promote innovative thinking about key issues for the future. At the ethical level, Pope Francis in his Encyclical Laudato si’ “Our Common Home” pronounced the natural environment to be “a collective good, the patrimony of all humanity and the responsibility of everyone.”41 The United Nations General Assembly responded to his presentation with sustained applause. The Pope noted that intergenerational solidarity is an important part of sustainable development, which can no longer be ignored. All of this history is relevant to assessing the future of the planetary trust. Viewed through an optimistic lens, it indicates that in the last few decades, the interests of future generations, and hence the trust, have become an active concern for many governments and for civil society worldwide. Youth are now leading the way. Through a pessimistic lens, however, progress to date is dramatically insufficient. The pressures for decisions focused on the immediate term have largely triumphed, and most institutions have not rebalanced decision-making to consider both the immediate and long-term issues. We face global threats to our planet without parallel. The Doomsday Clock of the Bulletin of Atomic Scientists on the threats of climate change and nuclear war was advanced in January 2020 to 100 seconds before midnight.42 7. Conserving the Planetary Trust: Present and Future Generations As we look to the next fifty years, we must take action urgently. As a first step, we need to recognize collectively that a de facto planetary trust exists and that we must conserve it for future generations. Doing so is a global and local public good. In dealing with it, we must face the reality of a kaleidoscopic world in which no State or even group of States can go it alone. This means that virtually

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everyone must become involved. States, subnational governmental units, international institutions, private sector companies, communities, civil society, religious bodies, and individuals have to come to the table. If we are to be effective in protecting and enhancing the planetary trust, we need to share common values in doing so. Norms that reflect these values provide the essential glue for the kaleidoscopic world, enabling it to work toward the goal of conserving our planet for ourselves and future generations. Elsewhere I have identified basic norms that are widely shared among countries and by peoples.43 They include the norms of cooperation, avoidance of harm, human dignity and equity, intergenerational equity, and accountability. The last norm is the one that makes implementation of the other norms effective. One can identify other norms that are in the process of emerging, such as transparency, or one that is urgently needed, such as a norm of respect for evolving scientific knowledge and an obligation to find out the facts underlying global problems.44 It is time for a Call to Arms to implement our planetary trust. A new Covenant in which States acknowledge the grave risks to our planet and commit to addressing them together would send a badly needed signal that ensuring the survival of our planet with a robust human environment is a top priority. This could be done as a separate high-profile initiative. The 50th Anniversary of the UN Stockholm Conference on the Human Environment could be a venue, because it will bring together States and a broad range of other actors. Entities other than States could join the Covenant in some manner or draft their own Covenants. As part of the Rio Conference on Environment and Development in 1992, civil society drafted a complementary Earth Charter. While the proposed Covenant might be nonbinding, it could nonetheless serve as a Call to Arms for States and for all peoples to commit to saving the robustness and integrity of our shared common home, our planetary trust. Our youth should welcome such a commitment, for they have the most to lose if we fail to act. I recognize that a Covenant can be an empty document, unless States and the many other actors implement it. But in the kaleidoscopic world, we need a new commitment to work together to consider the long-term and the robustness of our planet. Protecting the planet is a matter of national security for all countries. The dangers to our planet

threaten social and political stability, and hence national security. Often national security is viewed as a zero-sum game, in which a gain by one is at the expense of the other. But national security needs to be redefined in the context of the planetary trust. We are dealing with a common good, and to protect the common good, we have to cooperate. This is in everyone’s interest. Thus, we need to acknowledge that for some activities, countries and other actors are in competition with each other, but for others, namely conserving our planetary trust, they need to cooperate. The challenge is to identify actions for which cooperation is needed and to protect against the weak-link in the group and the free-riders. Viewing protection of the planetary trust as an issue of national security will raise the profile of the problem and the priority to address it. Implementing the planetary trust must involve actors beyond governments and issues in addition to those concerned with environmental and natural resources. The commercial and financial sectors are essential. Companies need to embed sustainability and long-term assessments into their decision-making. Companies in the energy sector in Europe are considering climate change in their decisions, in good part because of pressures from large investors and the European Union. They are increasingly incorporating climate data and risk assessments into decision-making at all levels of a company and holding employees accountable for doing so.45 Such systems of decision-making could extend to other regions and other commercial activities. For example, integrating climate change and other long-term assessments into decision-making is especially important for insurance companies and re-insurance companies. Regulatory agencies for companies could also require climate risk disclosure. The United States Security and Exchange Commission issued Commission Guidance Regarding Disclosure Related to Climate Change in 2010, but has not advanced since then on the issue.46 The financial sector is also important in conserving a planetary trust. The European Central Bank is exploring ways to combat climate change. It considers climate change in four areas: economic analysis, banking supervision, monetary policy and investment portfolios, and financial stability. As part of its monitoring role of banks, it monitors the carbon intensity of the portfolios of banks and has been developing a climate risk stress-test analysis for the euro area banking sector. While the

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International Monetary Fund does not yet consider climate change in its country assessments, it could if member States were to support doing so. Private Banks are also important partners in ensuring the common good of a healthy and vibrant planetary trust. The bottom line in projecting ahead is that we need all the actors in our kaleidoscopic world to develop and implement systems for systematically considering climate change and other threats to the planet in their decisions. At first, it may be viewed as innovative to consider regularly such long-term effects, but then it should become accepted and routine. The development, acceptance, and implementation of cost-benefit analysis offers a useful precedent, in that it is now treated as a routine practice. 8. More Initiatives Needed Turning to the traditional legacy of public international law, we should consider creating a new position of Under-Secretary for Future Generations at the United Nations.47 The United Nations Charter embodies the fundamental norm of intergenerational equity. The proposed position would send a signal that maintaining our shared planet is critical, that future generations are to be considered in all decisions, and that all States and the worldwide community are committed to this task. Such a high-level position represents a commitment to considering the long-term and to maintaining the common good. The office could serve as a focal point for reliable data and information about threats to the planet as well as a source for success stories in avoiding or undoing harm and in conserving the planet, especially in local communities. Such a position could also be created in UN specialized agencies and related institutions. There are many other initiatives that might be highlighted, including new international agreements, nonbinding or soft law instruments, or voluntary commitments by States to address particular problems or the planetary trust more generally. States are essential. But in the kaleidoscopic world, we must engage many more actors to cooperate with the shared goal of caring for and maintaining planet Earth in trust for present and future generations. Youth are central to this effort and our hope for the future. Time may be running out.

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Endnotes 1 Translated and published in Japanese (1990), French (1993), Spanish (1999) and Chinese (2000). 2 Ward, B. and Dubos, R., Only One Earth: The Care and Maintenance of a Small Planet, Norton, 1972. 3 Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES). 2019. “IPBES Global Assessment on Biodiversity and Ecosystem Services”. 4 Brown Weiss, E. 2019, “Intergenerational Equity in a Kaleidoscopic World,” Environmental Law and Policy 49/1, 3-11. 5 “About Tumblr”; available at: https://www.tumblr.com/about (accessed on 2 February 2021). 6 “Stats”; available at: https://wordpress.com/activity/. (accessed on 2 February 2021). 7 “Data”; available at: https://www.gsmaintelligence.com/ data/ (accessed on 2 February 2021); Q2 2020 Letter to Shareholders July 23, 2020 @TwitterIR; available at: https://s22. q4cdn.com/826641620/files/doc financials/2020/q2/Q22020-Shareholder-Letter.pdf. (accessed on 2 February 2021). 8 See e.g., Axelrod, R. The Evolution of Cooperation, New York, Basic Books, 1984; Barrett, S., Why Cooperate? The Incentive to Supply Global Public Goods, Oxford, Oxford University Press, 2007. 9 For details, see Brown Weiss, E. 2019, “Intergenerational Equity in a Kaleidoscopic World,” Environmental Law and Policy 49/1, 3-11. 10 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226, 241 (8 July); available at: https://www.icj-cij.org/public/files/case-related/95/095-1996 0708-ADV-01-00-EN.pdf (accessed on 2 February 2021). 11 Maritime Delimitation in the Areas between Greenland and Jan Mayen (Den. v. Nor.), Judgment, 1993 I.C.J. Rep. 38, 277 (14 June) (concurring opinion by Weeramantry, J.); available at: https://www.icj-cij.org/public/files/case-related/78/078-199306 14-JUD-01-00-EN.pdf (accessed on 2 February 2021). 12 Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment 2010 I.C.J. Rep. 14, 181 (20 April) (separate opinion by Canc¸ado Trindade, J.); Whaling in the Antarctic (Austl. v. Japan; N.Z. intervening), Judgment 2014 I.C.J. Rep. 226, 366 (6 February) (separate opinion by Canc¸ado Trindade, J.). 13 Whaling in the Antarctic (Austl. V. Japan; N.Z. intervening), Judgment 2014 I.C.J. Rep. 226,47 (6 February), (separate opinion by Canc¸ado Trindade, J.). 14 See, e.g. The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment, Inter-Am. Ct. H.R. (ser.C) No. 79 (31 August 2001). 15 See Brown Weiss, E. 2020. Establishing Norms in a Kaleidoscopic World, The Hague Academy of International Law, Brill/Nijhoff (pocketbook), pp. 293-307. 16 In a landmark decision, the Supreme Court of The Philippines accorded standing to sue to children as representing future generations, Minors Oposa v. Sec’y of the Dep’t of Envtl and Nat. Res., 224S.C.R.A. 792 (S.C.,30July 1993) (Phil.). 17 Urgenda Foundation v. State of the Netherlands, 19/00135 (S. C. 20 December 2019) (Neth.); Leghari v. Federation of Pakistan, W.P. No. 25501/2015 (Lahore High C. 25 January 2018) (Pakistan). 18 Goa Foundation v. Union of India & Ors, 435 SCC2012, Judgment (21 April 2014). 19 Common Cause v. Union of India & Ors,SC WP 2014, Judgment (2 August 2017).

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Government of India, National Mineral Policy 2019, Articles 1,10, 11; available at: https://mines.gov.in/writereaddata/Content/ NMP12032019.pdf (accessed on 22 January 2021). 21 Future Generations v. Ministry of the Environment and Others, Judgment No. 11001-22-03-000-2018-00391-01, at 20 (April 5, 2018), Translation from Dejusticia; available at: https://climate-laws.org/rails/active storage/blobs (accessed on 22 January 2021). 22 City of Charleston v. Brabham Oil Co. et al, Complaint, (2020); State v. American Petroleum Institute, Complaint (Minn. 2020); City and County of Honolulu v. Sunoco LP, Complaint (2020); City of Hoboken v. Exxon Mobil Corp., Complaint (2020); State v. BP America Inc., Complaint (Del. 2020). 23 Montini v. Woods and VonColditz. v. Woods et al., consolidated cases (D.N.Tex. 2019). (no ruling on the merits as of 17 October 2020). 24 D´ ecret No 2014-343/PRES du 12 mai 2014 promulguant la loi n◦ 008-2014/AN du 08 avril 2014 portant loi d’orientation sur le d´eveloppement durable au Burkina Faso. 2014. J.O. N◦ 30., Art. 16; available at: http://extwprlegs1.fao.org/docs/pdf/bkf1395 44.pdf (accessed on 12 January 2021). 25 Philippine Environmental Policy. 1977. Presidential Decree No. 1151, sections 1-4; available at: https://www.officialgazette. gov.ph/1977/06/06/presidential-decree-no-1151-s-1977/#: :text= It%20is%20hereby%20declared%20a,Filipinos%2C%20and%20 (c)%20to (accessed on 12 January 2021). 26 Well-being of Future Generations (Wales) Act 2015, Part 2, section 18; available at: https://www.legislation.gov.uk/anaw/ 2015/2/contents/enacted (accessed on 12 January 2021). 27 See Climate Change Response (Zero Carbon) Amendment Act 2019, sections 5M, 5ZC (New Zealand); available at: https://www.legislation.govt.nz/act/public/2019/0061/latest/LMS 183736.html (accessed on 12 January 2021). National Environment Protection Council Act 1995; available at: https:// www.legislation.vic.gov.au/in-force/acts/national-environmentprotection-council-victoria-act-1995/005#rpl-main-content (accessed on 12 January 2021), art. 3.5.2 (Australia); Environment Protection and Biodiversity Act 1999, art. 3A (Australia). 28 Constitution of Bhutan 2008, art. 5(1). 29 Constitution of Papua New Guinea 1975 (rev. 2016), preamble §4. 30 Ruling of the Supreme Court of Colombia Recognizing Rights to the Amazon Forest (5 April 2018). 31 Te Awa Tupua (Whanganui River Claims Settlement) Act, 2017 (New Zealand), art. 14. The statute grants legal rights to the Whanganui River.

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“India’s Ganges and Yamuna rivers are ‘not living entities”’, see https://www.bbc.com/news/world-asia-india-405 37701. The High Court of Uttarakhand had recognized such a right. Mohd. Salim v. State of Uttarakhand, Writ Petition (PiL) No. 126 of 2014 (High Court of Uttarakhand 2017). 33 Draft Universal Declaration of the Rights of Mother Earth 2010. 34 Constitution of Ecuador 2008 (rev. 2015), art. 71. 35 Mother Earth Law and Integral Development to Live Well, Law No. 300 (2012) (Bolivia) 36 Oxford Martin Commission for Future Generations. 2013. Report “Now for the Long Term”. 37 “Members”; available at: http://futureroundtable.org/ en/web/network-of-institutions-for-future-generations/roundtable (accessed on 3 January 2021). 38 UN Secretary-General. 2013. “Intergenerational solidarity and the needs of future generations: Report of the SecretaryGeneral”. UN Doc. A/68/322, 15 August 2013. 39 In 2001, the Cousteau Society presented the petition with by then nine million signatures to the United Nations SecretaryGeneral. 40 United Nations Educational, Scientific and Cultural Organization. 1997. “Declaration on the Responsibilities of the Present Generations Towards Future Generations”. 29 C/Res. 44, 12 November 1997. 41 Pope Francis, Encyclical Laudato si’, May 25, 2015, chptr 2, sec VI, para 23. 42 The Group of Elders presented the Doomsday Clock in 2020. (Nelson Mandela founded The Elders in 2007); available at: http://www.theelders.org (accessed on 3 January 2021). 43 Brown Weiss, E. 2020, Establishing Norms in a Kaleidoscopic World, The Hague Academy of International Law, Brill/Nijhoff (pocketbook). 44 Weiss, C., The Survival Nexus: Science, Technology and the World We Want, Oxford University Press, in press, 2021. 45 Ibid. 46 Securities And Exchange Commission, 17 CFR PARTS 211, 231 and 241, [Release Nos. 33-9106; 34-61469; FR-82] Commission Guidance Regarding Disclosure Related to Climate Change; available at: https://www.sec.gov/rules/interp/2010/339106.pdf (accessed on 3 January 2021). 47 Ambassador Bo Kjellen of Sweden offered this suggestion in a conversation in November 2018.

Our Earth Matters. B.H. Desai (Ed.) IOS Press, 2021 © 2021 The authors and IOS Press. All rights reserved. doi: 10.3233/STAL210004

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Exploring the Analytical, Normative and Transformative Dimensions of Earth System Law Louis J. Kotz´ea,∗ and Rakhyun E. Kimb a Research

Professor, North-West University, South Africa; Senior Professorial Fellow in Earth System Law, University of Lincoln, United Kingdom b Assistant Professor of Global Environmental Governance, Copernicus Institute of Sustainable Development, Utrecht University, The Netherlands

Abstract. In this article we argue that international environmental law cannot continue to exist in its present form for the purpose of the Anthropocene. We show that analytically, international environmental law and its lawyers are unable to fully understand and respond to the complex governance challenges arising from a complex Earth system. Normatively, international environmental law has failed to provide appropriate norms to prevent humans from encroaching on Earth system limits. In a transformative sense, international environmental law has not been sufficiently ambitious to achieve the type of radical transformations necessary to ensure planetary integrity and socio-ecological justice. We need a new legal paradigm that is better suited for the purpose of the Anthropocene that must address international environmental law’s analytical, normative and transformative concerns. We call this new paradigm earth system law. Building on our recent work, we offer here some preliminary thoughts about what we think the analytical, normative, and transformative dimensions of earth system law could and should entail, and why they would be more appropriate for the purpose of governing a complex Earth system in the Anthropocene. Keywords: International environmental law, sustainable development, Anthropocene, earth system law, earth system governance

1. Introduction We are witnessing unprecedented levels of Earth system destruction and intensifying patterns of injustice at all levels and scales. This is likely to ∗ We are grateful for the generous financial support from the South African National Department of Higher Education and Training University Capacity Development Programme, which was provided by the Research Support Department, North-West University, South Africa. This support enabled the research for this paper and its open access publication. All views expressed in this paper are our own and cannot be attributed to the Research Support Department, the Department of Higher Education and Training, or to the North-West University.

lead, if it has not already done so, to the transgression of critical tipping points in the Earth system, which are predicted to cascade and accelerate Earth system transformations into a deep Anthropocene.1 The magnitude and severity of Earth system destruction clearly reveal, among others, the deficiencies and failures of our social regulatory institutions that have been designed to prevent, minimize and remedy such destruction. This is particularly true for the 50-year-old international environmental law paradigm. Our thesis is that international environmental law that was developed in the context of the Holocene,

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cannot continue to exist in its present form for the purpose of the Anthropocene, especially if we were to maintain Holocene-like conditions conducive to all life on Earth. While this thesis is deceptively straightforward, its potential implications for international environmental law, and global environmental governance more generally, are not, especially insofar as it shifts our attention to a number of interrelated concerns about international environmental law that arise from within an analytical, normative and transformative context. It implies, first, that international environmental law’s scholars and practitioners have not yet fully appreciated the importance and value of embracing an interdisciplinary systems approach to better analyse, understand and respond to the multiple complex governance challenges arising from an integrated, dynamic and complex Earth system.2 Second, international environmental law has failed to provide an appropriate normative framework that is sufficiently geared towards preventing humans from encroaching on critical Earth system limits that define “stable” or “harmonious” Holocene conditions.3 Third, it implies that the ongoing incremental international environmental law reforms (of international environmental law internally and of the social processes this body of law seeks to influence externally) have not been sufficiently ambitious to achieve the type of thoroughgoing, radical transformations that are critically necessary to enable planetary integrity and socio-ecological justice.4 These considerations arguably foreshadow the end of international environmental law as we know it.5 Going forward, many agree that we need a new legal paradigm that is better able to respond to the multiple governance complexities of the Earth system.6 This insight has recently prompted us to propose the notion earth system law, which we consider a new legal paradigm that is better fit for purpose in the Anthropocene.7 Earth system law is both a continuous process and an outcome of our ongoing scientific efforts to improve on the analytical, normative and transformative concerns associated with, among others, international environmental law by: (i) facilitating interdisciplinary analysis and co-learning alongside an Earth system perspective to better understand and formulate regulatory responses for the type of complex governance challenges emanating from a

complex Earth system; (ii) offering a new set of appropriate norms that are able to restrain human behaviour and avoid transgression of Earth system limits; and (iii) providing innovative options for ambitious and radical reforms that can achieve meaningful transformations in pursuit of planetary integrity and socio-ecological justice. In this paper, we offer a brief elaboration of the analytical, normative and transformative dimensions of earth system law. We do so, first, by reflecting on why we believe international environmental law has reached the end of its shelf life. We show that while international environmental law might have been a ground-breaking paradigm 50 years ago, it has since become unfit for purpose from an analytical, normative and transformative point of view. Essentially, earth system law will have to respond to the analytical, normative and transformative concerns we raise in relation to international environmental law. The paper then offers a brief definition and description of earth system law, and elaborates what the analytical, normative and transformative dimensions of earth system law could entail. Throughout this part of the discussion, we will show that these three dimensions are very different from those of international environmental law. We also endeavour, where possible, to highlight some of the practical implications of our future vision of earth system law’s analytical, normative and transformative dimensions. We believe it is only through the radically different approach introduced by earth system law that law, as a regulatory institution, will be able to remain valid, legitimate and ultimately useful in the Anthropocene.

2. The End of International Environmental Law International environmental law has come a long way since its foundations were first formally elaborated during the 1972 United Nations (UN) Conference on the Human Environment. As far as we know, no thoroughgoing empirical studies have yet been conducted to determine the exact extent to which international environmental law, broadly conceived, has actually managed to maintain and improve planetary integrity since that time.8 One must therefore draw on a range of other analyses

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and observations to get some sense of international environmental law’s contribution to the outcomes of global environmental governance. While such a suggestive assessment will inevitably be generalized, it is further complicated by the fact that international environmental law is by no means the only social regulatory institution that has a potential steering effect and influence on planetary integrity (others are religion, politics, economics, corporate practices, and so forth).9 Yet, it needs little arguing that international environmental law plays a key role in the overall global environmental governance effort, and there is accordingly every reason to believe that it will at least be partially implicated in the victories and failures of global environmental governance.10 So, in the absence of empirical evidence to this effect, has international environmental law actually managed to contribute to maintaining and/or improving planetary integrity and socio-ecological justice the past 50 years? We would suggest that on balance, it has not. Evidence emanating from earth system science, and elsewhere, convincingly shows unprecedented and accelerating levels of Earth system decay, and associated deepening inter and intra-generation socio-ecological injustices that affect humans and more-than-humans.11 We see this in terms of epistemic frameworks such as the Anthropocene and other predictions showing that we are fast approaching a Sixth Mass Extinction event; all as a result of unrestrained human behaviour.12 Yet, we do not need even to engage with scientific assessments to appreciate the extent of human domination of the Earth system and the inability of international environmental law to counter the ever-expanding human encroachment on planetary limits. We are now able to “consciously connect events that happen on vast, geological scales—such as changes to the whole climate system of the planet—with what we might do in the everyday lives of individuals, collectivities, institutions, and nations (such as burning fossil fuels)”.13 As a result of such systemic changes, we can now vividly experience, over the course of a human lifetime (as opposed to the historically deep geological timescale), accelerated global environmental disruptions in our everyday lives. Anthropogenic climate change, for example, is clearly happening (despite the efforts of climate denialists to show otherwise),14 and is occuring much faster and has

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far more (often irreversible) debilitating impacts than initially thought. We now see on a daily basis that it is causing massive socio-economic instability and ecological disasters, with billions of vulnerable people left to fend for themselves, while a privileged few selectively advance their own entrenched short-term interests through predatory, exploitative politics, policies and laws that impact planetary integrity and socio-ecological justice.15 If this offers a snapshot of the extent of Earth system destruction and the deepening socio-ecological crisis, to what extent is international environmental law implicated (as one of many socio-regulatory institutions) in causing and deepening this destruction and crisis; and has it been able to prevent, minimize and rectify this destruction and crisis? We approach these questions by reflecting on international environmental law’s failures and deficiencies that reveal themselves from within analytical, normative and transformative contexts. 2.1. Analytical Context: Pursuing Linear “Environmental” Protection Through One Dimensional “International” State-Based “Law” Obviously, we can only adequately respond to and solve a problem if we can properly analyze and fully understand it. Such tasks of analyzing and understanding problems and responding thereto are usually that of scientists and those responsible for governance. What are some of the main concerns related to international environmental law that continue to bedevil a proper analysis and understanding of planetary challenges and the formulation of proper responses to these challenges in the appropriate Earth system context? First, international environmental law has served its purpose well in the 1970s as it aligned with and drew on the momentum of a promising post-World War II international legal order, which offered new possibilities to address human rights abuses; that lay the foundations for international trade, travel and commerce; and that inaugurated a new era of greater cooperation globally. The focus of international environmental law comfortably aligned with our simple understanding at the time of international environmental problems, such as the ozone layer and transboundary pollution concerns that can be

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governed by top-down inter-State laws. This narrow focus on the international inter-State level and on issues within “defined spatial boundaries”16 such as oceans, cultural heritage and pollution, however, gradually expanded in the last decade with a shift to the global, and more recently, the transnational context. The emergence of “global environmental law”17 and “transnational environmental law”,18 provided much-needed alternatives to international environmental law’s tunnel vision, especially to the extent that these new paradigms offer a more honest and realistic reflection of the regulatory reality that law is currently confronted with in the light of the most recent understanding of Earth system governance challenges. These “more than international environmental law” approaches show, for example, that: (i) there are many more actors involved with governing the Earth system than only the State; (ii) there are many more types of “law” involved in governing Earth system processes in addition to those emanating from the traditional sources of international law; (iii) there are several other alternative governance processes available than only the trite top-down mode of international environmental law; and (iv) international environmental law is only one part of a much larger body of laws that are relevant for governing the Earth system.19 The natural progression from international environmental law to global/transnational environmental law signals the potential of, and need to continue with, efforts to think about a new legal paradigm that departs from global/transnational environmental law and that is analytically better suited to the type of interconnected earth system governance challenges we observe through the Anthropocene trope. Second, analytical efforts pertaining to international environmental law predominantly focus on “protecting”, “preserving”, and “conserving” a pristine “environment” or “nature”.20 The environment is seen to be an isolated and autonomous entity that exists somewhere out there for the benefit of humans by providing, among many others, ecosystem services. This view derives from a “humanist bifurcation of natural history and human history”,21 in terms of which humans are disconnected from the environment, and elevated as masters thereof. For example, in order to promote sustainable development (an issue to which we return below), environmental “resources” and ecosystem “services” must be protected in order to sustain

human life, and not for the sake of preservation itself; the environment is quite literally seen as a “resource” in the “service” of humans. Climate change must be addressed because of the impacts it has on sustainable development, and on the quality of human life, and not for the reason that maintaining climate integrity is inevitably critical to ensure the continued integrity of all life and other interlinked planetary processes. In stark contrast to such approaches, the key message of the Anthropocene trope is instead that “international environmental law can . . . no longer be concerned with preserving an external and insensate environment, for there is no such entity”.22 It is rather the case that humans are deeply entwined with the entire Earth system, and able to change it because we (Anthropos) have become a geological force. In terms of such a description, international environmental law often fails to see the bigger picture because, generally, it does not embrace systems thinking and more specifically, the Earth system as its regulatory object. It remains focused on a linear, one-dimensional understanding of the environment as its regulatory object; there is “little reflection in international environmental law texts of the character of the Earth as a dynamic system”.23 Third, because an Earth system approach rejects international environmental law’s one-dimensional focus on an “environment” that needs to be “protected” by its human masters so that we can benefit from environmental resources and services, it also rejects the type of epistemologies of mastery that international environmental law and its analytical efforts continue to underwrite.24 Sam Adelman argues that epistemologies of mastery “are successful to the extent that they become naturalized and viewed as common sense, which is achieved when they become dominant or hegemonic by marginalizing, silencing or repressing alternative ways of knowing”.25 International environmental law’s narrative of sustainable development has been particularly successful in achieving exactly this, not only in the normative and transformative domains as we shall see below, but also as far as international environmental law’s analytical dimensions “reinforce the false assumption that humanity can exercise dominion over nature without repercussions”.26 Fourth, earth system governance challenges are notoriously difficult to understand, and hence to respond to, because the Earth system is a complex phenomenon. The Earth system is seen to be a

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collection of all complexly interacting physical, chemical, and biological global-scale cycles and energy fluxes which provide the conditions necessary to enable and sustain life on Earth. It is a materially closed system consisting of interlinked physical, chemical and biological processes that cycle materials and energy in non-linear, complex and dynamic ways within the system; all living organisms are active participants in (not simply passive respondents to) this system and vis-`a-vis the range of other non-living Earth system components; and the time scales of global change are highly variable.27 It is not altogether clear that international environmental law, and its scholars in particular, have really managed to embrace and respond to such complexity. For example, Fisher et al. show there are four methodological challenges related to environmental law scholarship, which also reveal how difficult it is to respond analytically to Earth system complexity.28 These are: “dealing with the speed and scale of legal/regulatory change, engaging with the interdisciplinary nature of the subject, addressing the heavy reliance in environmental law on a diverse range of governance arrangements and tackling the multijurisdictional nature of the subject”.29 International environmental law, as a scholarly endeavour, remains a distinct mono-disciplinary endeavour, despite its arguably being the most likely candidate of all areas of international law to benefit from interdisciplinarity. The reality is that “in the Anthropocene, social scientists must become geophysicists, and geophysicists must become social scientists”;30 but this penny has not yet dropped for international environmental law. 2.2. Normative Context: Inappropriate Norms to Constrain Human Behaviour The normative context reflects on the extent to which international environmental law provides the type of norms that are in fact appropriate for, fully able to, and properly geared towards, constraining human behaviour vis-`a-vis other Earth system components and processes. Given its main rationale (already articulated in the 1972 Stockholm Declaration on the Human Environment),31 one might be forgiven for assuming that international environmental law should offer the type of norms that set legal limits that are actually able to prevent humans from exceeding the limits of Earth’s life

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support systems. One useful way to visualize Earth system limits (despite critique),32 is through the planetary boundaries framework. This framework identifies and quantifies a set of nine planetary boundaries that “define the safe operating space for humanity with respect to the Earth system and [that] are associated with the planet’s biophysical subsystems or processes”.33 If these boundaries are crossed, the chance of maintaining the relatively stable Holocene-like state for human existence significantly diminishes as we step closer to “dangerous levels”, or where applicable, “tipping points” in Earth system processes. To this end, the planetary boundaries act as, values for control variables that are either at a “safe” distance from thresholds - for processes with evidence of threshold behaviour - or at dangerous levels - for processes without evidence of thresholds. Determining a safe distance involves normative judgements of how societies choose to deal with risk and uncertainty.34 Law is a social regulatory institution and is uniquely placed to restrain, steer, coerce, punish and to reward; in other words, “law is a purposeful vehicle for shaping behavior to achieve desired ends”.35 International environmental law, being law, therefore has an important role to play in shaping the “normative judgements” that must ultimately determine a “safe distance” from critical thresholds. To this end, international environmental law’s norms must “act as legal boundaries that prevent human activities from reaching and breaching planetary boundaries”; including “legal boundaries [that] must translate the physical reality of a finite world into law and thereby delimit acceptable levels of human activity”.36 Earth system science-based evidence shows that we have already crossed four of nine planetary boundaries,37 which suggests that, on balance and with few exceptions, international environmental law does not offer the norms we need to remain within the Earth system’s safe operating space.38 Mindful of the risk of oversimplifying a hugely complex issue, one prominent example suffices for present purposes: the international climate law regime is the principal binding and globally agreed upon legal response to address climate change. In terms of the planetary boundaries framework, global climate change is only successfully addressed if the climate change boundary is not crossed.39 Because

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we have already crossed the climate change planetary boundary, and hence entered the zone of uncertainty where “dangerous anthropogenic interference with the climate system”40 is highly likely, one can assume that international environmental law in general (and its climate regime in particular), is at least complicit in, if not exclusively responsible for, failing to prevent such a breach. The main concern in this respect is not so much the quantity of international environmental law norms, but rather the quality of these norms (as some say: “the problem is not too little environmental law but too much”).41 International environmental law is the “textual embodiment of the international institutions that have been developed to address global environmental challenges”,42 and it remains the densest area of international law, with more global conferences, regional and international treaties, and corresponding governance institutions than any other area of international law.43 While this impressive growth signifies the increased prominence of environmental concerns in society and in global environmental politics, it also highlights concerns related to the content of these norms and what they strive to achieve. The deepening socio-ecological crisis arguably cannot adequately be addressed simply by creating ever more path-dependent norms that might be optically (and especially politically) appealing and appeasing, but that have little decisive impact. Such norms merely scratch the surface by facilitating “prevention” and “precaution” and creating liability regimes that aim to force “polluters to pay”, among others.44 The socio-ecological crisis must also be addressed through more appropriate norms that stand in relation to the scale, depth and nature of the challenge they seek to tackle, namely Earth system destruction. The magnitude, depth, severity and urgency of Earth system destruction is so significant that neither “soft” law principles of prevention, precaution and polluter pays, nor “hard” law obligations prohibiting, for example, cross-border environmental harm, will suffice any longer to address human destruction of the Earth system at a planetary scale. We also need to be clear that much of what is wrong with international environmental law’s norms, is because of the idea of sustainable development, which is the guiding mantra principle of international environmental law. A “deceptively simple idea”45 that seems to pursue environmental

protection, sustainable development is, however, not an environmentally friendly principle or process. It is instead a convenient but fictitious ideological palliative that international environmental law has created and that it underwrites,46 that legitimizes and helps humans rationalize Earth system altering practices. Sustainable development is now so ubiquitous in many of our social systems, including the law, that it “has become ingrained as the rationale for social and economic policies and, as such, is rarely challenged, but accepted as necessary and inevitable”.47 The Sustainable Development Goals, the new poster child of global governance and politics, is an apt example in this respect. But sustainable development only continues to offer a smokescreen without having any ability whatsoever to achieve the type of deep and meaningful internal and external transformations that are necessary to promote planetary integrity. With the blanket endorsement of this haloed but deeply deceiving and politically appeasing principle, international environmental law has only managed to further promote the human social system’s exploitative, neoliberal, development-biased anthropocentrism through its inappropriate norms that are inevitably unable to confront ongoing predatory efforts squarely focused on selectively promoting the self-interests of some humans at the expense of an increasingly vulnerable living order.48 2.3. Transformative Context: Too Little Too Late? A recent sobering study suggests that planetary integrity has been negatively impacted to such an extent that “deliberate management of humanity’s relationship with the rest of the Earth System [is required] if the world is to avoid crossing a planetary threshold [including] a deep transformation based on a fundamental reorientation of human values, equity, behavior, institutions, economies, and technologies”.49 International environmental law is supposed to be centrally concerned with the “deliberate management of humanity’s relationship with the rest of the Earth System”. Yet, the analysis immediately above suggests that international environmental law has at best only made a minor contribution to halt the growing human encroachment on the biogeophysical limits of the Earth system, while it is unable to offer plausible opportunities for future adaptation to irreversible change.

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Directly related to the normative concerns raised above, it is rather the case that international environmental law has not managed to facilitate the type of paradigm-shifting transformations that we already should have seen decades ago, and that we now need more than ever in order to address the full extent of Earth system destruction and the resultant socio-ecological crisis. It is true that law generally, and international environmental law specifically, can only do so much to instigate, drive and deepen transformations in and of societies. International environmental law, after all, is not a magic cure for all the world’s ills and certainly not the sole driver of social transformations. But it is also true that it plays an important role in such an endeavour, and that whatever little international environmental law has managed to do over the course of half a century, it could and should have done much better. For one, international environmental law has not been, and still is not, sufficiently ambitious to deal with the planetary crisis and with the myriad socio-ecological injustices arising from human domination of the Earth system and of the vulnerable living order.50 For example, while climate change is a clear threat to all life on Earth, and despite overwhelming evidence to this effect, international environmental law has neither managed to meaningfully transform its own norms, objectives, processes and institutions internally, nor as a result, the behaviour of social actors and processes externally that contribute to global climate change. This much is clear from the recent Intergovernmental Panel on Climate Change (IPCC) Special Report on Global Warming of 1.5 Degrees Celsius, which predicts that climate change is only set to worsen if the current regulatory trajectory will be followed.51 Admittedly, international environmental law has managed to achieve some internal and external transformations and reforms, such as in the case of the international ozone law and governance regime.52 But these success stories are few and far between and arguably insufficient to suggest that international environmental law has actually managed to achieve thoroughgoing transformations that are in fact able to advance planetary integrity. For international environmental law to achieve deep structural transformations externally, it must itself be fundamentally transformed internally; in other words, only a fully transformed version of international environmental law can transform the

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behaviour of society in such a way so as to stay within Earth system limits. To this end, several commentators have suggested various options to achieve such internal transformations. Some proposals include to ecologize international environmental law with the adoption of rights of nature and of the principle in dubio pro natura;53 to develop peremptory global environmental “constitutional” norms or a global environmental constitution;54 to adopt a global right to a healthy environment;55 to adopt the principle of ecological sustainability;56 and to develop an all-embracing, higher-order framework treaty which entrenches the principle of ecological integrity as a Grundnorm.57 Regrettably few of these proposals have actually managed to filter down into the actual practice of international environmental law-making and reform. The closest the world came to laying the foundations to drive the type of transformations required by such proposals, was with the endorsement of the World Charter for Nature by the United Nations General Assembly in 1982.58 The ambitious ecologically-inclined Charter certainly was a step in the right direction, but while it could have marked a turning point in the evolution of international environmental law, or even a “global environmental constitutional moment”,59 the Charter has all but disappeared from the scene. A more recent initiative is the widely publicised Global Pact for the Environment, on which a lot of hope seems to be pinned to drive transformation of international environmental law itself and of society.60 But as critical commentators have shown,61 very little in the existing draft text of the Pact and its continuously evolving wish list actually introduces the type of radical and ambitious norms required to drive radical and ambitious internal and external transformations. The Pact remains firmly embedded in the sustainable development paradigm and everything that goes with this impulse.62 Having now been reduced to a mere non-binding political statement to be issued in 2022 to coincide with the 50th anniversary of the 1972 Stockholm Conference on the Human Environment,63 the Pact cannot drive the type of transformations that are actually required and it is not a solution for the prevailing planetary crisis. Regrettably, the entire process surrounding the Pact,64 including the work of the expert group that was responsible for the draft text, the high-level political negotiations, and the international environmental law gap report that was drafted to

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inform the creation of the Pact, only reinforce the omnipresence and force of sustainable development in continuing efforts to reform international environmental law. As one of the Pact’s main proponents, Yann Aguila, recently declared in a telling statement that clearly reveals the path-dependency of the Pact and its development process: “a Global Pact will serve as a unifying symbol to demand ambitious action from states and private sector actors to protect the planet and to create a sustainable development economy”.65 This is simply old wine in new bottles. In sum, international environmental law has not been able to achieve any meaningful transformations the past 50 years through its non-radical, unambitious and path-dependant norms that pursue sustainable development. And if the Pact is “the Logical Outcome of 50 Years of International Environmental Law”,66 as Yann Aguila believes it is, then it does not bode well for ongoing efforts that must try and achieve meaningful transformations in and through international environmental law for the next 50 years.

We define earth system law as an innovative legal imaginary that is rooted in the Anthropocene’s planetary context and its perceived socio-ecological crisis. Earth system law is aligned with, and responsive to, the Earth system’s functional, spatial and temporal complexities; and the multiple earth system science and social science-based governance challenges arising from a no-analogue state in which the Earth system currently operates. Earth system law seeks to respond to the Earth system’s instability and unpredictability through a continuous norm development process that drives meaningful transformations as well as interdisciplinary learning and deliberation. Fully embracing the need to guide the making of desirable planetary futures, Earth system law therefore offers: (i) an interdisciplinary analytical framework to better understand and respond to the legal dimensions of earth system governance; (ii) the normative foundations to govern the full spectrum of Earth system relationships in a way that promotes planetary integrity and justice in their fullest sense; and (iii) the legal means to facilitate transformative earth system governance for long-term sustainability.68 3.1. Analytical Dimension

3. The Dimensions of Earth System Law It is in the light of these numerous concerns that we have proposed the notion of earth system law. We consider earth system law to be an essential part of earth system governance, or “organised human responses to earth system transformation, in particular the institutions and agents that cause global environmental change and the institutions, at all levels, that are created to steer human development in a way that secures a ‘safe’ co-evolution with natural processes”.67 Instead of taking Holocene stability for granted, as international environmental law does, earth system law departs from long-term planetary dynamism and fully embraces, and seeks to actively create and maintain, Holocene-like conditions, while at once creating opportunities for adaptation where Earth system changes have become inevitably irreversible. It does so by responding to the Earth system’s key characteristics such as complexity, instability and unpredictability. Revolving on a systems perspective as it does, earth system law is therefore fully anchored in the Anthropocene’s planetary context.

The nature, magnitude and depth of Earth system transformations, and the socio-ecological crisis associated therewith, have become so complex that we need new and innovative analytical tools to understand the type of governance challenges emanating from a complex Earth system. It is only once we properly understand these earth system governance challenges, that we will be able to devise appropriate institutional, and more specifically legal, responses that might have some prospect of success. In an analytical sense, earth system law offers a framework to critique the current deficiencies of international environmental law, and to reimagine international environmental law; to open up the hitherto “closed” epistemologies of earth system science for lawyers while at once illuminating the juridical aspects of earth system governance for earth system scientists; to reveal the regulatory implications of the Earth system metaphor for law; and to serve as a new crosscutting theme of scientific enquiry for scholars working in the area of sustainability.69 A key guiding question for the analytical dimension of earth system law is, therefore: what are the implications of the Earth

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system perspective for existing international environmental law and its law-making processes? Scholars have done preliminary analyses in this respect,70 some of which explicitly draw on the insights of earth system governance research and its emphasis on the problem of institutional fit.71 A key conclusion is that we are missing global institutions for addressing planetary-scale challenges,72 such as those stemming from interacting planetary boundaries.73 As we have shown earlier, neither international environmental law, nor even global or transnational environmental law, fully respond to a planetary perspective. The concept of earth system law has therefore emerged “beyond” these categories of law to fill this gap, and it is increasingly being recognized among a growing group of scholars as a viable alternative to international environmental law.74 To this end, earth system law is informed by a planetary perspective and analysis that transcends geographical and jurisdictional boundaries.75 Therefore, the geographical and jurisdictional boundaries of earth system law (if there are any such boundaries), are informed by both ecological and socio-economic processes that are elaborated by earth system governance and earth system science.76 Temporally, the planetary perspective implies going beyond human and ecological timescales in order to align human affairs with geological timescales.77 Earth system law, for example, is less focused on addressing the problem of climate change through quick fixes such as solar radiation management, and instead fully takes into account the lifetime of carbon dioxide in the atmosphere for long-term solutions.78 While more analysis is required to explore what earth system law attuned to geological timescales might look like, some parallels can already be drawn with the existing laws regulating radioactive waste storage and disposal, for example, which need to be managed over the timespan of tens of thousands of years. Relatedly, another consideration is that earth system law cannot have either humanity or nature as a central reference point. This is because, the yet unknown “natural” or stable state of the Earth system in the Anthropocene is unlikely to be tenable or conducive to the survival of life as we know it. The Holocene-like conditions will become impossible to maintain through “natural” means, for example, by simply reducing the degree of anthropogenic interference with the Earth system. In other words, the environment will no longer exist as

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an object for “protection” from human interference in a deep Anthropocene. The still unknown purpose of earth system law will therefore need to be clarified.79 3.2. Normative Dimension In a normative sense, earth system law must better respond to the type of planetary governance challenges that the dynamic and complex Earth system presents, while at once offering solutions aimed at increasing Earth system resilience and reducing vulnerabilities. In other words, earth system law provides a framework within which it would be possible to design better laws to better govern a complex Earth system. Therefore, the contents of a new normative framework will be tied with the analytical dimension. It is not the aim of our paper to define the normative framework by, for example, pointing to key principles of law for the Anthropocene. A more detailed treatment of this issue can be found elsewhere.80 For the sake of brevity, we only highlight here some of the planetary justice and its related earth system governance democracy considerations that contribute to defining the normative dimension of earth system law.81 Planetary justice considerations depart from the acknowledgement that there will be winners and losers in the Anthropocene. The role of earth system law, and indeed earth system governance more broadly, is then to provide a normative framework for prioritizing the needs and interests of the marginalized and vulnerable within a paradigm of planetary stewardship. Such prioritization will involve addressing difficult and complex allocation challenges both within and between countries and among the rich and the poor in these countries.82 But the allocation challenges also go beyond the short-term, anthropocentric dimension to include those between the current and future generations as well as between humans and non-humans. Addressing these allocation challenges for planetary justice will form a core part of earth system law, and it could help to define a democratic form of earth system governance that this law will contribute to.83 The controversies surrounding global goal setting usefully illustrate our point. On the one hand there are global goals such as the Aichi Biodiversity Targets and the Sustainable Development Goals that are agreed upon through intergovernmental

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negotiation processes with representation from all governments and, to a lesser extent, civil society.84 Despite the shortcomings of international environmental law, this form of global goal-setting is generally seen to have been carried out through legitimate processes. On the other hand, global goals set by “self-appointed” scientists are increasingly influential. The planetary boundaries theory (discussed above) that was developed by a group of 29 such scientists is an example. The planetary boundaries have more recently reincarnated as “earth system targets” that are being negotiated and developed by an Earth Commission consisting of 19 scientists that have not been democratically elected or appointed through the usual intergovernmental processes. Will this “private” scientific commission manage to provide the democratic legitimacy to earth system targets which planetary boundaries have failed to secure? It remains to be seen to what extent the commission will represent the voices of the marginalized in the Global South.85 It is challenges such as these that would require earth system law scholarship to provide a critical perspective on the role of law in entrenching or disrupting patterns of planetary injustice and earth system governance democracy. In this context, it would be key for the notion of justice to be expanded and to become applicable to questions of inequality, for example, between human and more-than-humans. After all, as difficult as this might be to do, should we not also be listening to the voices of the voiceless when defining earth system targets and pursuing planetary justice for “everyone”? Answers to questions such as these will need to be found through open and inclusive deliberation, and through legitimate and democratic earth system governance institutions, and then ultimately institutionalized in earth system law, which could guarantee future generations and non-human species a seat at the table, as it were. 3.3. Transformative Dimension The transformative dimension of earth system law involves both reforming existing international environmental law alongside the governance demands of a complex Earth system (internal transformations), as well as pursuing initiatives that

are fully embedded in an earth system law paradigm that can trigger and steer societal transformation towards planetary integrity and justice (external transformations). These two objectives are intricately intertwined. Earth system law will remain difficult to realize unless societies show signs of change, and societal transformation will unlikely materialize unless legal paradigms start shifting. The main challenge in this respect (and this is a challenge that earth system law will have to overcome), is that we are facing “double complexity”: both the complex object of regulation (the Earth system) and the complex regulatory system that must respond to this object (the law) must be transformed.86 One way to confront this challenge is to adaptively manage complex adaptive legal systems which could be used to adaptively manage the complex adaptive Earth system.87 Such adaptive management of the regulatory object through adaptive management of our regulatory systems will need to be an ongoing, iterative, and interactive process. Earth system law can therefore not be too rigid, and will rather have to constantly adapt by responding to the dynamics of an Earth system that is always in flux. In this sense, it will be important to strike a fine balance between stability and flexibility of the rule of law.88 This may seem at odds with the necessity to “bolster legal boundaries” for the sake of staying within planetary boundaries,89 but it is not. Legal boundaries can be strict, but these boundaries can be revised periodically to allow for flexibility. Having multiple institutions and/or legal boundaries will also help as institutional redundancy could provide a safety net in case some legal boundaries fail.90 To this end, JB Ruhl argues that we need to harness, rather than reduce, legal complexity,91 while we should also make more deliberate use of institutional diversity. The transformative dimension of earth system law will clearly need to be in constant dialogue with its analytical and normative dimensions. For the purpose of guiding earth system transformations through earth system law, we will presumably first need to identify and analyse pathways through which legal institutions guide, shape, and/or block societal transformations. This will enable us to constantly develop, implement, and critically reflect on reform proposals such as the constitutionalization of international environmental law mentioned above.

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4. Conclusion

Endnotes

Our brief analysis suggests that international environmental law might have a burgeoning body of norms with a singular focus on an externalised “environment” that needs protection at the international level, but these norms that mainly operate at the inter-State level are not rationally connected with and responsive to biogeophysical Earth system limits and the complex interrelated nature of Earth system processes. Instead of aligning with Earth system limits and the Earth system’s many complex governance challenges, international environmental law remains a fragmented, one-dimensional, anthropocentric construct with a dualist Cartesian ontology, which renders it incapable to meaningfully confront the destruction caused by some privileged humans through the perpetuation of shortermist, neoliberal and pro-growth self-interests. International environmental law therefore has not been all that successful in preventing humans from crossing planetary boundaries, from becoming a major geological power equalling the disruptive force of volcanoes, and from destroying the living foundations of all life, including our own. We therefore suspect Sand might have spoken too soon in his 2007 assessment that “international law for the environment has coped rather well with the challenges of global change. It seems a little too soon, therefore, to predict ‘the end of environmental law”’.92 Our analysis rather supports the more sobering view that “the current system of international environmental law and governance . . . is considered to be unsuitable for navigating the Anthropocene”.93 It is clear that “fresh thinking is required to move beyond the (transitory) answers provided by the broad concept of sustainable development. This is perhaps the most important frontier in contemporary international environmental law”.94 In this paper, we offered our version of “fresh thinking” that we situate in the paradigm of earth system law. Earth system law must, alongside all other governance interventions, ultimately contribute to enable desirable futures for all Earth system components and processes, including human and more-than-human entities. It therefore offers a new, innovative paradigm for law to facilitate the type of transformations that are in step with a continuously transforming Earth system, and that would be needed to fully confront the socio-ecological crisis of the Anthropocene.

1 See, for example, Rob` ert, K.-H., Broman, G.I. and Basile, G. 2013. “Analyzing the Concept of Planetary Boundaries from a Strategic Sustainability Perspective: How does Humanity Avoid Tipping the Planet?” Ecology and Society 18 : 1-9. 2 Stephens, T. 2018. “What is the Point of International Environmental Law Scholarship in the Anthropocene?” In: Pedersen, O. (ed). Perspectives on Environmental Law Scholarship: Essays on Purpose, Shape and Direction, at 121-139. Cambridge: Cambridge University Press. 3 Steffen, W. et al. (eds). 2004. Global Change and the Earth System: A Planet under Pressure. Berlin: Springer. 4 Kotz´ e, L. 2019. “International Environmental Law’s Lack of Normative Ambition: An Opportunity for the Global Pact for the Environment?” Journal for European Environmental and Planning Law 16 : 213-236. 5 See, generally, Kotz´ e, L. (ed). 2017. Environmental Law and Governance for the Anthropocene. Oxford: Hart. 6 Vi˜ nuales, J. 2018. “The Organization of the Anthropocene in Our Hands?” International Legal Theory and Practice 1 : 1-81. 7 Kotz´ e, L. and Kim, R.E. 2019. “Earth System Law: The Juridical Dimensions of Earth System Governance”. Earth System Governance 1 : 1-12. See also, Kotz´e, L. 2020. “Earth System Law for the Anthropocene: Rethinking Environmental Law alongside the Earth System Metaphor”. Transnational Legal Theory 11 : 75-104; Kotz´e, L. 2019. “Earth System Law for the Anthropocene”. Sustainability 11 : 1-13. 8 This will no doubt be a difficult study to undertake, although it has been done for other regulatory institutions such as the Sustainable Development Goals. See Zeng, Y. et al. 2020. “Environmental Destruction not Avoided with the Sustainable Development Goals”. Nature Sustainability 3 : 795-798. 9 See, for example, Young, O. (ed). 1999. The Effectiveness of International Environmental Regimes: Causal Connections and Behavioral Mechanisms. Cambridge, Mass.: MIT Press. 10 As Bodansky puts it, international environmental law might be called a “thirty-percent solution”. Bodansky, D. 2010. The Art and Craft of International Environmental Law, at 15. Cambridge, Mass.: Harvard University Press. 11 United Nations Environment Programme. 2019. Global Environmental Outlook 6: Healthy Planet, Healthy People. Cambridge: Cambridge University Press. 12 Briggs, J. 2017. “Emergence of a Sixth Mass Extinction?” Biological Journal of the Linnean Society 122 : 243-248. 13 Chakrabarty, D. 2018. “Anthropocene Time”. History and Theory 57 : 5-32, at 6. 14 Norgaard, K.M. 2011. “Climate Denial: Emotion, Psychology, Culture, and Political Economy”. In: Dryzek, J., Norgaard, R. and Schlosberg, D. (eds). The Oxford Handbook of Climate Change and Society, at 399-413. Oxford: Oxford University Press. 15 Malm, A. and Hornborg, A. 2014. “The Geology of Mankind? A Critique of the Anthropocene Narrative”. The Anthropocene Review 1 : 62-69; Kotz´e, L. 2019. “International Environmental Law and the Anthropocene’s Energy Dilemma”. Environmental and Planning Law Journal 36 : 437-458. 16 Stephens, supra, note 2, at 124. 17 Yang, T. and Percival, R. 2009. “The Emergence of Global Environmental Law”. Ecology Law Quarterly 36 : 615-664.

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Heyvaert, V. and Duvic-Paoli, L-A. 2020. Research Handbook on Transnational Environmental Law. Cheltenham: Edward Elgar. 19 Kim, R.E. 2016. “Transnational Sustainability Law: Whither International Environmental Law?” Environmental Policy and Law 46 : 405-408. 20 All terms that are typically used in international environmental law instruments and textbooks. 21 Stephens, T. 2017. “Reimagining International Environmental Law in the Anthropocene”. In: Kotz´e, L. (ed). 2017. Environmental Law and Governance for the Anthropocene, at 54. Oxford: Hart. 22 Ibid. 23 Stephens, supra, note 2, at 128. 24 Adelman, S. 2015. “Epistemologies of Mastery”. In: Grear, A. and Kotz´e, L. (eds). 2015. Research Handbook on Human Rights and the Environment, at 9-27. Cheltenham: Edward Elgar. 25 Ibid., at 10. 26 Ibid., at 9. 27 Kotz´ e, “Earth System Law”, supra, note 7, at 8-9. 28 Fisher, E. et al. 2009. “Maturity and Methodology: Starting a Debate about Environmental Law Scholarship”. Journal of Environmental Law 21 : 213-250. 29 Ibid., at 215. 30 Stephens, supra, note 21, at 54. 31 The Declaration states, for example: “A point has been reached in history when we must shape our actions throughout the world with a more prudent care for their environmental consequences. Through ignorance or indifference we can do massive and irreversible harm to the earthly environment on which our life and well being depend. Conversely, through fuller knowledge and wiser action, we can achieve for ourselves and our posterity a better life in an environment more in keeping with human needs and hopes”. Declaration of the United Nations Conference on the Human Environment, UN Doc. A/RES/2994 (adopted 15 December 1972), at Preamble para 6. 32 Biermann, F. and Kim, R.E. 2020. “The Boundaries of the Planetary Boundary Framework: A Critical Appraisal of Approaches to Define a ‘Safe Operating Space’ for Humanity”. Annual Review of Environmental Resources 45 : 497-521. 33 Rockstr¨ om, J. et al. 2009. “A Safe Operating Space for Humanity”. Nature 461 : 472-475; and more recently, Steffen, W. et al. 2015. “Planetary Boundaries: Guiding Human Development on a Changing Planet”. Science 347 : 1259855. 34 Ibid., at 472-473. Own emphasis. 35 Hadfield, G. and Weingast, B. 2012. “What is Law? A Coordination Model of the Characteristics of a Legal Order”. Journal of Legal Analysis 4(2): 471-514, at 473. 36 Chapron, G. et al. 2017. “Bolster Legal Boundaries to Stay within Planetary Boundaries”. Nature, Ecology and Evolution 1 : 1-5, at 1. 37 Rockstr¨ om et al., supra, note 33, at 472; Steffen et al., supra, note 33. 38 French, D. and Kotz´ e, L. (eds). 2021. Research Handbook on Law, Governance and Planetary Boundaries. Cheltenham: Edward Elgar. 39 UN Framework Convention on Climate Change [(1992) 31 ILM 849], at Article 2. 40 Mann, M. 2009. “Defining Dangerous Anthropogenic Interference”. Proceedings of the National Academy of Sciences 106(11): 4065-4066.

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Bodansky, supra, note 10, at 35. Stephens, supra, note 21, at 47. 43 Kim, R.E. 2013. “The Emergent Network Structure of the Multilateral Environmental Agreement System”. Global Environmental Change 23 : 980-991; Mitchell, R.B. et al. 2020. “What We Know (and Could Know) about International Environmental Agreements”. Global Environmental Politics 20 : 103-121. 44 While there are others, the preventive, precautionary and polluter pays principles are examples of the most prominent principles of international environmental law. See, more generally, Kr¨amer, L. and Orlando, E. (eds). 2018. Principles of Environmental Law. Cheltenham: Edward Elgar. 45 Adelman, S. 2018. “The Sustainable Development Goals, Anthropocentrism and Neoliberalism”. In: French, D. and Kotz´e, L. (eds). Sustainable Development Goals: Law, Theory and Implementation, at 21. Cheltenham: Edward Elgar. 46 Richardson, B. 2011. “A Damp Squib: Environmental Law from a Human Evolutionary Perspective”. Osgoode Hall Law School Comparative Research in Law and Political Economy Paper Series 7(3): 1-42, at 31. 47 Hursh, D. and Henderson, J. 2011. “Contesting Global Neoliberalism and Creating Alternative Futures”. Discourse: Studies in the Cultural Politics of Education 32(2): 171-185, at 178. 48 Adelman, supra, note 45, at 15-40. 49 Steffen, W. et al. 2018. “Trajectories of the Earth System in the Anthropocene”. Proceedings of the National Academy of Sciences 115(33): 8252-8259, at 8258. Own emphasis. 50 Kotz´ e, supra, note 4. 51 Available at https://www.ipcc.ch/sr15/. 52 Du Toit, L. 2021. “Stratospheric Ozone Depletion”. In: French, D. and Kotz´e, L. (eds). 2021. Research Handbook on Law, Governance and Planetary Boundaries. Cheltenham: Edward Elgar. 53 Bryner, N. 2015. “Applying the Principle in Dubio Pro Natura for Enforcement of Environmental Law”. In: Organization of American States. 2015. Inter-American Congress on the Environmental Rule of Law: Selected Essays, at 166-173. Montego Bay: OAS. 54 Kotz´ e, L. 2016. Global Environmental Constitutionalism in the Anthropocene. Oxford: Hart. 55 UN Human Rights Council “Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment”, UN Doc. A/HRC/37/59 (2018), at para. 46; Kotz´e, L. 2018. “In Search of a Right to a Healthy Environment in International Law”. In: Knox, J. and Pejan, R. (eds). The Human Right to a Healthy Environment, at 136-154. Cambridge: Cambridge University Press. 56 Bosselmann, K. 2016. The Principle of Sustainability: Transforming Law and Governance. Florence: Taylor and Francis. 57 Kim, R.E. and Bosselmann, K. 2013. “International Environmental Law in the Anthropocene: Towards a Purposive System of Multilateral Environmental Agreements”. Transnational Environmental Law 2 : 285-309; Bridgewater, P., Kim, R.E. and Bosselmann, K. 2014. “Ecological Integrity: A Relevant Concept for International Environmental Law in the Anthropocene?” Yearbook of International Environmental Law 25 : 61-78; Kim, R.E. and Bosselmann, K. 2015. 42

L.J. Kotz´e and R.E. Kim / Exploring the Analytical, Normative and Transformative Dimensions of Earth System Law “Operationalizing Sustainable Development: Ecological Integrity as a Grundnorm of International Law”. Review of European, Comparative & International Environmental Law 24 : 194-208. 58 UN General Assembly, UN Doc. A/RES/37/7 (adopted 28 October 1982). See more generally, Burhenne, W. and Irwin, W. 1986. Beitr¨age zur Umweltgestaltung: The World Charter for Nature: Legislative History. Berlin: Erich Schmidt Verlag. 59 Kotz´ e, L. 2019. “A Global Environmental Constitution for the Anthropocene?” Transnational Environmental Law 8 : 11-33; Kotz´e, L. 2015. “The Anthropocene’s Global Environmental Constitutional Moment”. Yearbook of International Environmental Law 25 : 24-60. 60 UN General Assembly “Towards a Global Pact for the Environment”, UN Doc. A/RES/72/277 (adopted 10 May 2018). 61 Biniaz, S. 2019. “The UNGA Resolution on a ‘Global Pact for the Environment’: A Chance to Put the Horse before the Cart”. Review of European, Comparative and International Environmental Law 28 : 33-39; Kotz´e, L. and French, D. 2018. “A Critique of the Global Pact for the Environment: A Stillborn Initiative or the Foundation for Lex Anthropocenae?” International Environmental Agreements: Politics, Law and Economics 18 : 811-838. 62 See, for example, article 3 of the draft text of the Pact. Available at https://globalpactenvironment.org/uploads/EN.pdf. 63 Available at https://globalpactenvironment.org/uploads/ GPRecomFINAL.pdf. 64 See, for a timeline, https://globalpactenvironment.org/ en/the-pact/where-are-we-now/ and for an incisive discussion, Petersmann, M. “I Wish there was a Treaty We could Sign: An Inquiry into the Making of the Global Pact for the Environment” (submitted for review, available on request from the author). 65 Aguila, Y. 2020. “A Global Pact for the Environment: The Logical Outcome of 50 Years of International Environmental Law”. Sustainability 12 : 1-17, at 1. Own emphasis. 66 Ibid., at 1-17. 67 Biermann, F. 2007. “’Earth System Governance’ as a Crosscutting Theme of Global Change Research”. Global Environmental Change 17 : 326-337, at 328. 68 Kim, R.E. and Kotz´ e, L.J. 2021. “Planetary Boundaries at the Intersection of Earth System Law, Science and Governance: A State-of-the-Art Review”. Review of European, Comparative and International Environmental Law 30 : 3-15. 69 Clark, W.C. and Harley, A.G. 2020. “Sustainability Science: Toward a Synthesis”. Annual Review of Environment and Resources 45 : 331-386. 70 See, for example, Sterner, T. et al. 2019. “Policy Design for the Anthropocene”. Nature Sustainability 2 : 1-8; Lim, M. (ed). 2019. Charting Environmental Law Futures in the Anthropocene. Singapore: Springer; Vidas, D. 2011. “The Anthropocene and the International Law of the Sea”. Philosophical Transactions of the Royal Society A 369 : 909925. 71 Young, O.R. 2002. The Institutional Dimensions of Environmental Change: Fit, Interplay, and Scale. Cambridge, Mass.: MIT Press; Galaz, V. et al. 2008. “The Problem of Fit between Governance Systems and Environmental Regimes”. In: Young, O.R., King, L.A. and Schroeder, H. (eds). 2008. Institutions and Environmental Change: Principal Findings, Applications, and Research Frontiers, at 147-186. Cambridge, Mass.: MIT Press.

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Walker, B. et al. 2009. “Looming Global-Scale Failures and Missing Institutions”. Science 325 : 1345-1346. 73 Steffen, W., Rockstr¨ om, J. and Costanza, R. 2011. “How Defining Planetary Boundaries Can Transform our Approach to Growth”. Solutions 2 : 59-65. 74 Earth System Governance. 2020. “Task Force on Earth System Law”. Available at https://earthsystemgovernance.net/ research/taskforce-on-earth-system-law/. 75 See, for example, Schellnhuber, H.J. 1999. “‘Earth System’ Analysis and the Second Copernican Revolution”. Nature 402 : 19-23; Lenton, T.M. et al. 2008. “Tipping Elements in the Earth’s Climate System”. Proceedings of the National Academy of Sciences 105(6): 1786-1793; Steffen et al., supra, note 49. 76 For a review of earth system science, see Steffen, W. et al. 2020. “The Emergence and Evolution of Earth System Science”. Nature Reviews Earth & Environment 1 : 1-10. 77 Richardson, B.J. 2017. Time and Environmental Law: Telling Nature’s Time. Cambridge: Cambridge University Press. 78 See, for example, Barrett, S. et al. 2011. “Climate Engineering Reconsidered”. Nature Climate Change 4 : 527-529; Archer, D. et al. 2009. “Atmospheric Lifetime of Fossil Fuel Carbon Dioxide”. Annual Review of Earth and Planetary Sciences 37 : 117-134. 79 Stephens, supra, note 2. 80 See, for example, Robinson, N.A. 2014. “Fundamental Principles of Law for the Anthropocene?” Environmental Policy and Law 33 : 13-27. 81 Biermann, F. and Kalfagianni, A. 2020. “Planetary Justice: A Research Framework”. Earth System Governance. Available at https://doi.org/10.1016/j.esg.2020.100049. 82 Kashwan, P. et al. 2020. “Planetary Justice: Prioritizing the Poor in Earth System Governance”. Earth System Governance. Available at https://doi.org/10.1016/j.esg.2020.100075. 83 See, for example, Dryzek, J.S. and Stevenson, H. 2011. “Global Democracy and Earth System Governance”. Ecological Economics 70 : 1865-1874. 84 S´ enit, C.-A. 2020. “Transforming Our World? Discursive Representation in the Negotiations on the Sustainable Development Goals”. International Environmental Agreements: Politics, Law and Economics 20 : 411-429. 85 Pickering, J. and Persson, A. ˚ 2020. “Democratising Planetary Boundaries: Experts, Social Values and Deliberative Risk Evaluation in Earth System Governance”. Journal of Environmental Policy & Planning 22 : 59-71. 86 Galaz, V. 2011. “Double Complexity: Information Technology and Reconfigurations in Adaptive Governance”. In: Boyd, E. and Folke, C. (eds). Adapting Institutions: Governance, Complexity and Social-Ecological Resilience, at 193-215. Cambridge: Cambridge University Press. See also Kim, R.E. 2020. “Complex Systems”. In: Morin, J.-F. and Orsini, A. (eds). Essential Concepts of Global Environmental Governance, at 47-49. New York: Routledge. 87 Ruhl, J.B. 2012. “Panarchy and the Law”. Ecology and Society 17(3). Available at https://www.ecologyandsociety. org/vol17/iss3/art31/. See also Kim, R.E. and Mackey, B. 2014. “International Environmental Law as a Complex Adaptive System”. International Environmental Agreements: Politics, Law and Economics 14 : 5-24. 88 Ebbesson, J. 2010. “The Rule of Law in Governance of Complex Socio-Ecological Changes”. Global Environmental Change 20 : 414-422.

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Chapron et al., supra, note 36, at 1-5. Low, B. et al. 2003.“Redundancy and Diversity: Do They Influence Optimal Management?” In: Berkes, F., Colding, J. and Folke, C. (eds). Navigating Social-Ecological Systems: Building Resilience for Complexity and Change, at 83-114. Cambridge: Cambridge University Press. 91 Ruhl, J.B., Katz, D.M. and Bommarito, M.J. II. 2017. “Harnessing Legal Complexity”. Science 355 : 1377-1378. 90

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Sand, P. 2007. “The Evolution of International Environmental Law”. In: Bodansky, D., Brunn´ee, J. and Hey, E. (eds). The Oxford Handbook of International Environmental Law, at 42. Oxford: Oxford University Press. 93 Kim and Bosselmann, supra, note 57, 286. 94 Dupuy, P.-M. and Vi˜ nuales, J. 2018. International Environmental Law, at 24. Second edition. Cambridge: Cambridge University Press.

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Our Earth Matters. B.H. Desai (Ed.) IOS Press, 2021 © 2021 The authors and IOS Press. All rights reserved. doi: 10.3233/STAL210005

Making Environmental Law Function in the Anthropocene Nicholas A. Robinson∗ University Professor on the Environment and Gilbert and Sarah Kerlin Distinguished Professor of Environmental Law Emeritus, Pace University School of Law, New York, USA; Executive Governor, International Council of Environmental Law

Abstract. Earth is home to all known life, on land, within the oceans, inland waters, and amidst the atmosphere. This community of life exists within well recognized frontiers. But, human induced degradation of ecosystems is rendering much of the Earth less habitable for the humans and the other species. To cope with the escalating insults to human life and health, governments have been establishing environmental laws since the 1970s. It posits a vital question at this juncture: What should be the functions that environmental law should serve, both today and into the foreseeable future? This article will suggest four thematic areas for action in this regard. First, all laws and policies should embrace a holistic view of Earth; second, a common and shared analytic methodology needs to be deployed such as environmental impact assessment; third, a strategic cock-pit for ecological cooperation required to provide solutions for environmental crises; finally, a set of mutually recognized and shared principles will need to be embraced in order to provide a coherent and harmonized outlook for humanity’s ecological civilization. Keywords: Earth’s biosphere, Anthropocene epoch, environmental degradation, environmental law, environmental impact assessment, ecological cooperation

Earth’s biosphere evolved uniquely, before and beyond humans.1 Through progressive advances in scientific study, humans have come to understand their planetary habitat.2 Earth is home to all known life, on land, within the oceans and inland waters, and amidst the atmosphere. This community of life exists within well recognized frontiers. From the stratospheric ozone layer to the deep ocean trenches, the biosphere envelops space around Earth of 20 kilometers (12 miles). Most life exists from 500 meters (1,640 feet) below the ocean’s surface to about 6 kilometers (3.75 miles) above sea level. Within their species’ habitat, humans have settled in vast numbers predominately along the sea coasts, away from which now they are migrating inland ahead of rising sea levels. Wherever they are, ∗ Corresponding

author. E-mail: [email protected].

human beings live among and depend upon the biosphere’s ecosystems, whose diverse flora and fauna mix with water, minerals and other non-living matter in cyclical exchanges of energy and nutrients associated with the creation of new biota and decomposition of dead organic matter.

1. Humans in the Biosphere Humans interact with myriad natural systems across the biosphere. Ecosystems are the cradle for civilization. For example, forests are biomes that host complex ecological functions such as carbon storage, nutrient cycling, water and air purification, and providing myriad habitats for wildlife. Humans enter forests in quest of their social, economic and cultural benefits, such as appreciation of beauty,

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spiritual renewal, recreation, and extraction of foods, timber, fuel and a pharmacopeia of bioproducts. Humans preserve some forests as parks, clear-cut others for industrial agriculture, and sustainable manage tree farms. Until the agricultural revolution, as George Perkins Marsh first recognized in 1864,3 humans lived among ecosystems like all other species, largely without destroying them. With the advent of farming and non-migratory settlements, some 4,000 years ago, humans began to alter Earth’s landscape. The once rich river basins of the Tigris and Euphrates, renown once as the “fertile crescent,” became arid and desertification emerged. Some 200 years ago, with the Industrial Revolution, human impacts reached beyond altering landscapes to imprint the entire planet with their ingenuity markers. Humans have invented substances, which were never naturally a part of their ancestral habitats, and then discarded them across all surfaces of the Earth as “wastes”: the radioactivity from atmospheric nuclear weapons tests, novel synthetic and organic chemical compounds, plastics, and deposits of carbon dioxide and reactive nitrogen that alter the carbon and nitrogen cycles. Earth’s fossil record now reflects remnants of newly extinct species amidst Earth’s sixth great extinction phenomenon.4 Human induced degradation of ecosystems5 is rendering much of the Earth less habitable for humans and other species alike, as warmer ambient air temperatures, zoonotic spill-overs of emerging infectious diseases, wildfires, desertification, extreme weather events, melting of the cryosphere, ocean acidification and sea-level rise all follow in the wake of climate change.6 The United Nations reports worldwide deterioration of environmental conditions.7 Some posit that today’s 7.5 billion Homo sapiens on Earth have exceeded the planetary boundaries’ capacity to sustain life as we have known it for the past 40,000 years.8 What anthropogenic changes will 9 billion humans bring about? What does it mean for popular culture, taking their cue from geologists,9 to acknowledge that Earth has left the Holocene epoch to enter the Anthropocene epoch?10 Human society has largely ignored the accumulation of these impacts, treating them as economic “externalities” outside the responsibility of those who promote socio-economic development. To cope with the escalating insults to life and health, since the 1970s,

governments have been establishing environmental laws. Although all governments cooperated in establishing this entirely new field of law,11 the reforms have not been sufficient to stop, much less reverse, degradation of Earth’s biosphere. 2. Dominant Force Altering Earth Since humans have become the dominant force altering Earth’s natural systems, how should humanity’s ethical precepts guide Homo sapiens’ terra-forming behavior? What should be functions that environmental law should serve, both today and into the foreseeable future? This essay will suggest four thematic areas for action, based on the five decades in which governments and civil society have interacted to create the environmental rule of law following the 1972 Stockholm Conference on the Human Environment. Humanity is becoming aware that it exists in a geophysical and ecological milieu never before known. There is much for science to discover as humans adapt to their new habitats. New legislative and policy reforms will accompany and stimulate adaptation. Humans can study and learn from inevitable feed-back loops and evolve norms that will facilitate effective adaptation.12 If the past is the prologue to the future, as Environmental Policy and Law has chronicled for the past five decades,13 governments, scientists and non-governmental organizations can strengthen their capacity to design, adopt and implement more environmental laws.14 This prognosis, however, is far from assured because humans now exist in a new age. Past policy, legal and technological achievements have turned out to have been necessary but not sufficient to sustain the community of life on Earth. Past, and still current, assumptions are that international cooperation through environmental law would prevent15 and control pollution16 and produce patterns of sustainable development, as agreed by the UN General Assembly in Agenda 21.17 In 2015, the world’s nations agreed on prescriptions to attain “the world we want”18 in the United Nations’ “Sustainable Development Goals.”19 Yet as of 2021, the prospects to attain the SDGs by the target year of 2030 are dim. Few, if any, States have altered their social, economic and environmental policies and laws to align them with the SDGs. The extractive industries continue to degrade wild

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nature. As humans disturb wild habitats, zoonotic spill-overs of viruses and bacteria bring novel infectious diseases to humans, such as COVID-19.20 Inertia and a preference for “business as usual” have prevented States from taking the forthright actions necessary to attain the SDGs. Remediation of degraded ecosystems, mandated in SDG 15, is elusive and incremental environmental harm escalates everywhere. So, while the human population grows in the near future from 7.5 billion to perhaps 9 billion, is it realistic to project that environmental law, as framed today, will be effective to restore “harmony with nature”?21 What new and more effective functions might law serve? In a world of human settlements and governments, what priorities should policy and law adopt? How might we forge a new canon for the Anthropocene?22 How can sectoral and instrumental environmental laws evolve into holistic ecological stewardship laws?23

3. New Functions for Environmental Law There are four over-arching functions for environmental law in the Anthropocene. First, all laws and policies should embrace a holistic view of Earth and learn how to govern within the framework of Earth’s natural systems. Second, a common and shared analytic methodology needs to be deployed in each nation, and environmental impact assessment provides that capability. Third, a central coordinating role must be defined to integrate and harmonize the many sectors that can help provide solutions for environmental crises. Finally, a set of mutually recognized and shared principles will need to be embraced in order to provide a coherent and harmonized outlook for humanity’s ecological civilization. 3.1 Only One Earth As efforts to contain COVID-19 shuttered much of the world’s socio-economic activity, externalities have been reduced. Fossil fuel use has plummeted. Wild animals rebound. Pollution abates, and exploitation is lessened. Humans experience a reduced level of impact. Can humans accept this situation not just a “new normal,” but a step toward adapting to a sustainable harmony of humans with nature. This will require a “One Health” approach to

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the community of life sharing the planet. One Health is the universal policy and practice of care for the integrity, stability, resilience, and beauty of Earth’s biotic community through nurturing the interdependent health links that are shared among humans, wildlife, domesticated animals, plants, ecosystems, and all nature. One Health transcends and unites the contributions of the life sciences for stewardship of ecosystem integrity and biodiversity to sustain the health and wellbeing of life on Earth. Like the UN Sustainable Development Goals, One Health is holistic, requires cooperation that acknowledges the interdependence of all sectors of human behavior. Restoring and embracing ecological health and integrity makes One Heath the primary duty of the state. Policy changes follow. Security no longer can rely first on military defense or armaments. The lion’s share of resources allocated to armed forces will need to be invested in public health and environmental conservation, ecologically sound agricultural practices, and disaster preparedness. As a consequence, after COVID-19 is contained, international cooperation has an unprecedented opportunity to reimagine priorities, set new standards, redesign practices, and build new socio-economic platforms without the environmentally destructive externalities of the past. COVID-19 obliged us, for a time, to tame unsustainable “production and consumption.” Enhancements to environmental law can consolidate those gains, building incentives to move rapidly to a circular economy model that eliminates waste. 3.2 Look Before You Leap: EIA One easily available means by which to make this adaptation, at all levels of governments, is to reimagine the roles served by an environmental impact assessment and social impact assessment. The two functions can be united into one analytic process, as was initially the case.24 By fragmenting analysis into separate realms for humans and nature, governments divided the community of life artificially. Since EIA requires that every decision at each level of government take precautions to study all possible adverse environmental impacts, weigh alternative actions that would avert harm, and mitigate all adverse impacts, EIA is uniquely suited to reverse incremental environmental degradation each time humans interact with nature. Prioritizing

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the use of a holistic EIA becomes a universal system by which best practices can be innovated, exchanged and deployed. This is possible because EIA legislation exists in virtually every nation.25 Moreover, the UN International Court of Justice has found that the duty to conduct EIA is a customary rule of international law.26 Since every nation acknowledges its duty to implement EIA, at international and national levels, comparable EIA laws and methodologies can be readily enlisted to enable rapid adaptation to the new conditions of the Anthropocene. Because many governments and economic development interests often misconceive EIA as a drag on a growth, they assign a low priority to EIA. Almost all require capacity-building to equip all levels of government with the means to implement the legal duty to perform EIA. In the Anthropocene, this neglect changes. EIA becomes one of the most important tools that ensure that the SDGs are attained and nations “rebuild better” after COVID-19. EIA can also serve how governments plan27 and cooperate to build closer cooperation to deal with the Anthropocene’s natural disasters28 and to collaborate in the growing migration of people29 away from living on the coasts, where inundation is guaranteed, to resettling in ecologically stable interior locations.30 Both the extreme weather events destroying the built infrastructure of the past and the coming patterns of migration present an enormous opportunity to build sustainable human settlements anew, without the slums and pollution and supply-chain problems of living in Earth’s current mega-cities. The designs of energy-efficient and wholesome cities exist, and priority must be given to implementing them. 3.3 A Strategic Cock-pit for Ecological Cooperation To coordinate inter-governmental policy and performance, enhanced capacities are needed, locally, nationally and internationally. Internationally, the United Nations can no longer address only the UN Charter’s priority on “collective security” to end the scourge of war, but must give equal or greater weight to the Charter’s focus on the Economic & Social Council (ECOSOC). For some time, scholars have recognized the need for an environmental trusteeship role within the United Nations.31

Diplomats have recognized this also and launched the stronger roles for the UN Environment Assembly (UNEA) in Nairobi, with a stronger UN Environment Programme (UNEP).32 The UNEA has universal UN Membership33 , but issues remain because its roles overlap with the UN General Assembly, at which are held the forum on forests, the Law of the Sea sessions, the Permanent Forum on Indigenous Issues, and policy deliberations of the Second Committee. Proposals to strengthen intergovernmental cooperation and capacity-building are being debated under the mandate of UN General Assembly Res. 73/333. A stronger UNEA and better resourced UNEP are incremental and desirable steps, but so long as the UN Member States treat environment and development as separate objectives, they divide human society and fragment the community of life. In the Anthropocene, the time will come to merge the UNEP and the UN Development Programme (UNDP), into a combined Sustainability Programme, based on the same global consensus that is the foundation for the SDGs. Without doing so, the SDGs cannot be attained. On the eve of the 50th anniversary of the 1972 UN Stockholm Conference on the Human Environment, the time has come either to add ecological security to the mandate and agenda of the UN Security Council or to establish under ECOSOC a comparable “Ecological Security Council.”34 No Charter amendment is needed to do so, only a re-organization of UN systems for decision-making by the Member States. A bureau of ECOSOC, entrusted with coordinating State action to address environmental crises, could work with the multilateral environmental agreements, such as the Convention on Biological Diversity or the Climate Change Convention, as well as UN specialized agencies. All these environmental treaty organization have the same member states as the UN, so it is in the interests of all UN Member States to convene all capacities. For example, to control of zoonotic infectious diseases, like COVID-19, requires the World Health Organization, the Convention on Biological Diversity, the Food & Agricultural Organization, and many others, including UNDP and UNEP. Impacts of climate change extend well beyond the UN Framework Convention on Climate Change, and include harmonizing the roles for the Convention on Combatting Desertification, the Arctic Council, the World Meteorological

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Organization, and many others. As the Brundtland Commission observed, “the Earth is one but the world is not.”35 It is time for the world to treat the Earth as one system and create a central coordinating body for harmonizing policy and setting inter-agency and global priorities. Each national and local government similarly requires a strategic center for environmental decision-making. Just as the natural laws of the biosphere is a complex and integrated whole, so the human laws for care of the regional watersheds, coastal areas, forests and other biomes need integration and harmonization. Although incremental decisions can be addressed as they arise, through re-imagined EIA regimes, an over-arching, all-of-government guiding authority is required. Given environmental degradation trends, states can no longer pretend to have ministries that “protect” the environment. The need is already evident for governments at all levels to reconstitute their agencies for pollution control, soil conservation, forest and wetlands stewardship, and management of wildlife and care of ecosystems. In place of sectoral agencies, there can a consolidated Ministry of Ecological Transformation.36 Nonetheless, there will always be too many agencies that are not easily consolidated and cannot be. For enlisting inter-agency cooperation, a central Council on Ecological Security will be needed.37 This central coordinating body can also oversee deployment of the many new tools that emerging technologies, including artificial intelligence, machine learning, big data analytics and remote sensing, are providing for innovative platforms for collaborative problem solving across continents and time zones. 3.4 Guiding Principles of Ecological Law Strategic and central decision-making also requires a common outlook, grounded in the recognition that all governments share the same biosphere. Without the common policy approach that shared principles provide, governments can coordinate inconsistently and agencies can perform at cross-purposes. Since the 1972 Stockholm Conference on the Human Environment, States have recognized a number of environmental principles.38 The principle that was agreed at the 1992 Rio de Janeiro UN Conference in Environment & Development (UNCED, the “Earth Summit”) have

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been applied and implemented in the national laws of most nations. For the Anthropocene, to attain the SDGs a further over-arching set of principles of law should be articulated and agreed, as States achieved in 1972 and 1992 and 2002. The 1992 Rio Declaration on Environment & Development has been enormously successful. The basis for replicating this success exists in the consensus that supported adoption of the SDGs and in the fact that the vast majority of nations already accept the right to a healthy environment in their national constitutions.39 These can provide the framework for cooperation that supplements and provides a basis for coordinating among the existing network of bilateral, regional, international and multilateral environmental agreements. The occasion of the 50th anniversary of the 1972 Stockholm Conference presents an opportunity for States to adopt a new declaration of principles for the Anthropocene. Unlike prior political declarations of principles, the next articulation of shared principles should not be expressed in an ad hoc or sectorized manner. A holistic and ecological perspective should motivate their synthesis and presentation. This ecological perspective is being recognized in many different nations today, including China40 and Costa Rica.41 Earth’s biosphere sustains human life in every country and is the basis for protecting our shared planet. Where environmental law has tended to be sectoral and instrumental, the emerging framework of ecological law is harmonizing and integrating for attaining a biosphere perspective in governmental and all other decision-making. Nations are not acting as if they are governing in the Anthropocene epoch, not yet. The disruptions of climate impacts in the Anthropocene will either drive them to this shared awareness, or they will experience the loss of their cultural heritage and find that their very political existence becomes history.

4. Conclusion As ecological law emerges in the coming years, this holistic vision will elaborate and doubtless further refine the contours of the four themes discussed in this essay. The ecological vision of Aldo Leopold long ago foretold this evolution. After a lifetime of ecological field studies and experiencing the great disruptions of the economic “Great Depression” and

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the desertification of the American “Dust Bowl” and then World War II, Aldo Leopold arrived at his “Land Ethic.” He observed that “we abuse the land because we regard it as a commodity belonging to us. When we see the land as a community to which we belong, we may begin to use it with love and respect.” In A Sand County Almanac published in 1949,42 Leopold posited that “A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise.” He wrote that “The land ethic simply enlarges the boundaries of the community to include soils, waters, plants, and animals, or collectively: the land . . . In short, a land ethic changes the role of Homo sapiens from conqueror of the land community to plain member and citizen of it.” This recognition can guide humans through the Anthropocene to live within the community of life of Earth biosphere, and their ecological law can make it so.

Endnotes 1

Vladimir I. Vernadsky ( ) The Biosphere (1926), available in English in several editions, e.g. The Biosphere (with annotations and commentary, 1998, D.B. Langmuir, Translator), Springer-Verlag, New York). 2 The modern quest to understand Earth may be said to have begun with Sir Isaac Newton’s posthumous study, The System of the World (1728), and restated most recently in the published syntheses of the UN Intergovernmental Panel on Climate Change (IPCC); available at: https://www.ipcc.ch/ (accessed on 11 January 2021), and the UN Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES); available at: https://ipbes.net/ (accessed on 11 January 2021). 3 George Perkins Marsh, Man & Nature, Or, Physical Geography as Modified byHumanAction (1864); available at: https://publicdomainreview.org/collection/man-and-nature-1864 (accessed on 11 January 2021). 4 See the Anthropocene Working Group (AWG) report; available at: http://quaternary.stratigraphy.org/working-groups/ anthropocene/; The AWG is constituted by Sub-Commission on Quaternary Stratigraphy in the InternationalCommissionon Stratigraphy(ICS), which is the largest and oldest scientific member of the International Union of Geological Sciences (IUGS). The AWC’s 2019 decision on the Anthropocene is reported in Nature; available at: https://doi.org/10.1038/ d41586-019-01641-5 (accessed on 11 January 2021). See “Anthropocene Now: Influential Panel Votes to Recognize Earth’s New Epoch;” available at: https://www.nature.com/ articles/d41586-019-01641-5 (accessed on 11 January 2021). 5 See the Millennium Ecosystem Assessment, finding 50% of ecosystem harmed; available at: https://www.millennium assessment.org/en/index.html (accessed on 11 January 2021).

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See IPCC Special Report, “Global Warming of 1.5 Degrees Centigrade;” available at https://www.ipcc.ch/sr15/ (accessed on 11 January 2021). 7 UN Global Environmental Outlook 6 (Geo-6) Report (2019); available at: https://www.unenvironment.org/global-environmentoutlook (accessed on 11 January 2021). 8 See Will Steffen, et al., “Planetary boundaries: Guiding human development on a changing planet” Science,13 Feb 2015:Vol. 347, Issue 6223, DOI: 10.1126/science.1259855 .The law and policy implications of recognizing planetary boundaries is advocated by an NGO, Our Common Human Home, based at the Instituto Geof´ısico da Universidade do Porto, R. de Rodrigues de Freitas 4430-211, V. N. de Gaia – Portugal; available at: https://www.commonhomeofhumanity.org (accessed on 11 January 2021) 9 See Anthropocene Working Group Report, see note 4. 10 See Will Steffen, Paul J. Crutzen, and John R. McNeill, “The Anthropocene: Are Humans Now Overwhelming the Great Forces of Nature?” 36 : 8 Ambio (Dec. 2007) 614-21.; see also Joseph Stromberg, “What is the Anthropocene and Are We In It?” Smithsonian Magazine (January 2013); available at: https://www.smithsonianmag.com/science-nature/what-is-theanthropocene-and-are-we-in-it-164801414/ (accessed on 11 January 2021). 11 See Nicholas A. Robinson & Lal Kurukulasuriya, Training Manual on International Environmental Law (UN Environment Programme, 2006); available at: http://digitalcommons.pace. edu/lawfaculty/791/(accessed on 11 January 2021). 12 See Nicholas A. Robinson, “Evolved Norms: A Canon For the Anthropocene,” in Christina Voigt, Rule of law for Nature (Cambridge University Press, 2013), p. 46. 13 See Barbara J. Lausche, Weaving A Web of Environmental Law (2008, ICEL/IUCN 2008), at p. 147, where Lausche records EPL’s founding: “Another major ICEL initiative was the launch of a professional journal, Environmental Policy and Law. Begun in 1975 by Wolfgang Burhenne, with initial funding from FUST [The Fund for Environmental Studies, financed primarily through the philanthropy of Elisabeth Haub, Weisbaden, Germany], and continuing today, the journal aims to provide a medium for disseminating information on international environmental policy and law, and an important component of its function is to reproduce in the journal international policy decision documents, sometimes not otherwise easily available.”); available at https://www.iucn.org/content/weaving-a-web-environmental-law (accessed on 11 January 2021). EPL’s documentation function has been supplanted by the databases on the Internet, e.g. ECOLEX (IUCN, FAO, UNEP); available at: https://www.iucn. org/resources/conservation-tools/ecolex (accessed on 11 January 2021). EPL’s mission to evaluate and compare environmental law continues, as is evident in this symposium 50th anniversary year issue. 14 In its first editorial, Wolfgang E. Burhenne and Martin A. Mattes (eds), EPL vol. 1, p.1 (1975-76), wrote that “Our central purpose is . . . to inform those active in the environmental field in one country of the theories and practices being developed in other countries or at the international level.” 15 The “No Harm” or Prevention Principle is restated in the 1972 Stockholm Declaration on the Human Environment, in Principle 21: States have . . . the sovereign right to exploit their own resources . . . and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

N.A. Robinson et al. / Making Environmental Law Function in the Anthropocene 16

Polluter Pays Principle, Principle 16 of the 1992 Declaration of Rio de Janeiro on Environment and Development: “National authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.” 17 See the annotations for Agenda 21, and traveaux pr´eparatoires for the 1992 Rio Earth Summit, in Nicholas A. Robinson (ed.), Agenda 21 and the UNCED Proceedings (6 volumes, Oceana Publications, 1993). 18 UN Conference on Sustainable Development, Rio+20 (2002, Rio de Janeiro), title of the political outcome document; available at: https://sustainabledevelopment.un.org/rio20 (accessed on 11 January 2021) . 19 UN Sustainable Development Goals; available at: https://sdgs.un.org/goals (accessed on 11 January 2021). 20 Nicholas A. Robinson, “The Next Pandemic Is Here,” 37 ENVIRONMENT FORUM 30 (Environmental Law Institute, November-December 2020); available at: https://www.eli.org/ the-environmental-forum/search (accessed on 11 January 2021). 21 UN General Assembly Resolution A/RES/73/235 (20 December 2018) on “harmony with nature;” available at: https:// undocs.org/en/A/RES/73/235 (accessed on 25 January 2021). 22 Principles of cooperation, biophilia and resilience will shape these priorities. See Nicholas A. Robison, “Evolved Norms: A Canon for the Anthropocene,” in Christina Voigt, Rule of Law for Nature (Cambridge, 2013). 23 See Kirstin Anker, et al., (eds.), From Environmental to Ecological Law (2021 Routledge). 24 See Section 102(2)( c) of the National Environmental Policy Act (“NEPA”), 42 U.S.C. 4321, adopted in 1969; available at: https://www.energy.gov/nepa/downloads/national-environmen tal-policy-act-1969; https://www.energy.gov/sites/prod/files/ nepapub/nepa documents/RedDont/Req-NEPA.pdf (accessed on 01 February 2021). 25 Rio Principle 17 provides that “Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority,” see, CBD, “Rio Declaration on Environment and Development”; available at: https://www.cbd. int/doc/ref/rio-declaration.shtml (accessed on 1 February 2021). 26 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010; available at: https://www.icj-cij.org/ en/case/135/judgments (accessed on 11 January 2021). 27 Strategic EIA, also called programmatic EIA, provides best practices for such planning technique. See, e.g. the European Union; available at: https://europa.eu/capacity4dev/publicenvironment-climate/wiki/strategic-environmental-assessment (accessed on 11 January 2021). 28 See the Sendai Framework for Disaster Risk Reduction; available at: https://www.undrr.org/publication/sendai-frame work-disaster-risk-reduction-2015-2030 (accessed on 11 January 2021). 29 See the work of the Organization for Migration; available at: https://www.iom.int/ (accessed on 11 January 2021). 30 Matthew E. Hauer, et al., “Sea-Level Rise and Human Migration,” Nature Reviews Earth & Environment volume1, pages 28–39 (2020).

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See Bharat H. Desai, International Environmental Governance: Towards UNEPO (Leiden: Brill/Nijhoff, 2014). See also Nicholas A. Robinson, “Befogged Vision: International Environmental Governance a Decade After Rio,” William and Mary Environmental Law and Policy Review 27 (2002), 299. 32 See Macharia Kamau, Pamela Chasek, and David O’Connor, Transforming Multilateral Diplomacy (Routledge 2018). 33 For an understanding of the role and work of UNEA, see, generally, Bharat H. Desai, “The Advent of the United Nations Environment Assembly”, ASIL Insights, vol.19, no.2, 15 January 2015; available athttp://www.asil.org/insights/volume/19/issue/ 2/advent-united-nations-environment-assembly. 34 There have been creative proposals to convert the Trusteeship Council into a UN Environmental Trusteeship Council, but UN Member States have not wished to open negotiations to amend the UN Charter. See discussion of the Charter; available at: https://research.un.org/en/docs/tc/reform (accessed on 11 January 2021). 35 Report of the UN World Commission on Environment & Development, Our Common Future (1987); available at: https:// sustainabledevelopment.un.org/content/documents/5987ourcommon-future.pdf (accessed on 1 February 2021). 36 In 1970 in the USA, President Richard M. Nixon created the first ever US Environmental Protection Agency (EPA) by executive orders, combing bureaus out from existing agencies. France has taken an important step in creating a Ministry of Ecological and Solidarity Transition; available at: https:// research.un.org/en/docs/tc/reform (accessed on 11 January 2021). 37 The 1969 National Environmental Policy Act (NEPA) in the USA created a Council on Environmental Quality in the Executive Office of the President, but subsequent Presidents chose not to use the CEQ as the statute intended. See Section 201 of NEPA, 42 U.S.C. 4321. To be effective, this coordinating role needs to be directed by the governor or Prime minister directly; available at: https://www.fsa.usda.gov/Assets/USDA-FSAPublic/usdafiles/Environ-Cultural/nepa statute.pdf (accessed on 1 February 2021). 38 See Ludwig Kr¨ amer and Emanuela Orlando (Eds), Principles of Environmental Law (2018, Elgar Encyclopedia of Environmental Law series 6). 39 David R. Boyd, The Environmental Rights Revolution (University of British Columbia Press, 2012), and see Y. Aguila and J. E. Vi˜nuales (eds.), A Global Pact for the Environment: Legal Foundations (Cambridge: C-EENRG, 2019); available at: https://globalpactenvironment.org/uploads/Aguila-VinualesA-Global-Pact-for-the-Environment-Cambridge-Report-March2019.pdf (accessed on 11 January 2021). 40 See, e.g. Nicholas A. Robinson, “Ecological Civilization and Principles for Global Environmental. Governance,” Chinese Journal of Environmental Law 4 (2020) 131–162. 41 See Robert Fletcher, My Perfect Country, “How Costa Rica Became One of the Greenest Countries on Earth,” for The Compass, BBC; available at: https://www.bbc.co.uk/ programmes/articles/2WjxnLkpwDY9dkLLYPf7X6q/costa-ricaa-21st-century-environmental-leader (accessed on 11 January 2021). 42 Aldo Leopold, A Sand County Almanac: And Sketches Here and There (posthumously published in 1949, Oxford University Press).

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Our Earth Matters. B.H. Desai (Ed.) IOS Press, 2021 © 2021 The authors and IOS Press. All rights reserved. doi: 10.3233/STAL210006

The Framework of Ecological Law Klaus Bosselmann∗ Director, New Zealand Centre for Environmental Law, University of Auckland, New Zealand

Abstract. Environmental law has always been hampered by its reductionist approach to the natural environment or more precisely, to the human-nature relationship. In contrast, ecological law would encourage us to think about the law from an Earth-centered perspective. But even more than thinking about the legal issues, ecological law reflects and advocates a changed mindset. We need to develop a mindset that is conscious of what has worked in the past and what promises to work in the future. This could be addressed through development of eco-centric law, inclusion of eco-centric grundnorm, transforming law and governance, and institutionalizing trusteeship governance. At the end, it is proposed that ecological law would frame our thinking in a way that reflects not only the traditional values of connectedness with nature, but equally leading cutting-edge sciences of today such as ecology, earth system science and health sciences. Keywords: Environmental degradation, ecological law, eco-centric, grundnorm, Anthropocene, trusteeship governance

The Environmental Policy and Law journal is as old as its subject. The beginnings of modern environmental policy and law are often associated with the enactment of the US National Environmental Policy Act in 1970.1 Around that year, most of the industrialized world had adopted general environmental laws in some form. Fifty years later we must conclude that environmental law has achieved little to halt or even slow down the global ecological crisis. Environmental law, nationally and internationally, may have saved some ‘trees’, but the ‘forest’ has been (almost) lost.2 The integrity of the entire Earth system is now at risk. 1. Time for Systemic Change Environmental law has always been hampered by its reductionist approach to the natural environment or more precisely, to the human-nature relationship. In Western philosophical tradition humans are ∗ Corresponding

nz.

author. E-mail: [email protected].

perceived as separate from nature. Nature is ‘the other’ and only noted in its segments (animals, plants, landscapes, water, air etc.). As a consequence, envirzonmental policies and laws have developed in a compartmentalized, fragmented and anthropocentric fashion. Broader coverage and better enforcement of environmental laws would not fix that. Their inherent design flaw is the absence of a fundamental rule prohibiting harm to the integrity of ecosystems. Such a rule requires the acceptance of ecological sustainability as a fundamental ethical and legal principle.3 The design flaw in current constitutional and legal arrangements is, of course, only a facet of a socio-economic system that is largely oblivious to socio-ecological interdependencies. The current Covid-19 global pandemic has consumed whole of 2020 demonstrates just that. Poor communities are far more affected than rich people in affluent societies. And those who bear the most responsibility for environmental degradation – those who hold the most wealth in societies – are also least interested in transformational change. They

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benefit the most from environmental destruction, global inequalities, structural racism, current power structures and associated legal arrangements. As complex as each of these issues are, they are symptomatic of human civilisation’s broken relationship with nature. The current pandemic is a poignant symptom of this broken relationship; however, it also offers the opportunity for rethinking it.4 Humans are part and parcel of the natural world. And boundaries between species are not absolute but mere markers for the continuum of life. So, when, if not now, will modern society, supposedly educated in evolution and ecology, find a way out of the anthropocentric worldview that has dominated Western thinking for centuries?

2. Emergence of Ecological Law The history of environmental law is closely connected with its moral-philosophical context. From its beginnings, environmental law has been questioned for its anthropocentric reductionist view of nature. In 1972, Christopher Stone suggested that nature should have rights to exist similar to those that humans claim for themselves.5 Ever since ecologically oriented legal scholars have increasingly aimed for adopting nonanthropocentric conceptions and strategies that recognise the intrinsic value of nature.6 The call for eco-centric law and governance has also been promoted and supported at the level of the United Nations, mainly through the UN General Assembly (UNGA) Dialogue “Harmony with Nature,” which started in 2009. On 19 December 2019, the UNGA adopted the eleventh resolution 72/224 on the issue and called on States to “facilitate support for and recognition of the fundamental interconnections between humankind and nature”.7 In a statement delivered on International Mother Earth Day, 22 April 2020, the President of UNGA called for “a paradigm shift from a human-centric society to an Earth-centered global ecosystem”.8 And reviewing 50 years of environmental law, the UN Secretary-General’s 2020 report on “Harmony with Nature” stated: “(T)he weakness of environmental law is directly linked to the fact that it always stopped at the doorstep of private law. Furthermore, environmental law entered the game when all

the cards had already been drawn, and the new environmental public law of the 1960s and 1970s added only a few environmental duties to private property rights, without restrictions. Environmental law has therefore continued to be the ‘poor relative’ of property and commercial law and can only promote insufficient measures on the periphery thereof”9 The alternative approach has also been described in UNGA reports. The Secretary-General report of 2012, for example, highlighted some key characteristics of ecological law10 : “45. Numerous scientists, economists, and legal experts have decried the escalating destruction of the Earth’s natural systems (...) They are insisting that, rather than people and planet serving the infinite growth of the economy, economy must recognize its place as servant to the larger well-being of humans and the Earth itself. 46. In this new system, the rule of law, science, and economics will be grounded in the Earth. (...) 47. A key challenge in developing a global governance system built on the rule of ecological law is reinvigorating a transformed sense of democracy, in which individuals and communities embrace their ecological citizenship in the world and act on their responsibility to respect the complex workings of the Earth’s life systems.” The “rule of ecological law”11 , a “transformed sense of democracy”12 , “ecological citizenship” and “responsibility to respect the Earth’s life systems”13 are also the appropriate legal categories for the Anthropocene. The Anthropocene (‘Age of Humans’) describes our epoch of homo sapiens now roaming the entire globe and pushing planetary boundaries. This epoch began with the Industrial Revolution - triggered by the invention of steam engine, fuelled by coal and oil and driven by the paradigm of progress and growth.14 But only the last 50 years saw the explosion of population numbers and of economic prosperity, known as the ‘Great Acceleration’ – the acceleration of socio-economic processes in stark conflict with the carrying capacity of the planet. Today, humanity uses the equivalent of 1.5 planets to provide the resources we use and absorb our waste.15

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Humans have now transformed the Earth’s life systems in ways that pose a real danger to our own survival and the survival of other life. This is a new phenomenon. It is, however, the result of another transformation of human development that began 12,000 years ago with the emergence of agriculture and the Neolithic Revolution. This provided the base for permanent settlements and niche building that is now manifest in the urban concentrations where the majority of our species lives. So as we have transformed the face of the Earth by agricultural and other conversions of landscapes, we have transformed our social organization - from the equality of hunter-gatherer bands to a hierarchy of privilege based on acquired wealth from the earth and manifested now in territorial behaviour like some other social species have. Hunter-gatherers shared the common space, but agriculture made us territorial. In legal terms, humanity has shifted from sharing the commons to adopting exclusive property rights.16 3. The Importance of an Eco-Centric Grundnorm The significance of this shift can hardly be overestimated, but it took many centuries for the process of the enclosure of the commons to unfold.17 Exclusive property rights have been created by political liberalism and exercised by individuals, companies and states. They are the legal mechanism that has shaped modern civilization and are the key for its continued existence. It is difficult to imagine how a sustainable future could be achieved without major changes to the system of property rights and land ownership.18 If we do not find a way of temperance and self-control in the context of property rights, Garrit Hardin’s Tragedy of the Commons will finally be complete. But what might generate such temperance and self-control? We could be pessimistic here considering the power of capitalism with its roots deeply embedded in the European traditions of dualism, anthropocentrism, materialism and expansionism.19 On the other hand, we may celebrate the European traditions of humanism, human rights and democracy as among humanity’s greatest achievements. However, whether capitalism, socialism or humanism, they have all followed a peculiar morality that placed humans over nature. Such a

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morality may have been good enough for the advancements in science, technology and prosperity in the Holocene, but has equally revealed its dark side. Its ecological ignorance may spell humanity’s collective downfall, at least, in the long run. The challenge in the Anthropocene, therefore, is to move from an anthropocentric to an eco-centric paradigm. Revealingly, the Preamble of the Earth Charter begins with: “We stand at a critical moment in Earth’s history, a time when humanity must choose its future”. The Earth Charter defines respect and care for the community of life – not just human life - as fundamental to all law and governance. The problem is, of course, that such ethical shift cannot be installed per decree, but only be advocated through social, educational and political processes. What we as law teachers and researchers can do, however, is to show the failures of the existing legal system and describe the changes needed for a better one.20 One focus must be the dominant concept of property. Its failures can be seen on a daily basis and are all around us. For example, the ever-increasing gap between rich and poor undermines all prospects for sustainability, yet governments seem incapable of bridging the gap. Here we need to discuss the social dimension of property rights. Or think of climate change. The air is free for everyone and corporations use their power to determine the price that they are prepared to pay. Governments, in turn, fear for the competitiveness of their national economies and hope for ‘global’ solutions. Here we need to discuss the ecological dimension of property rights. The social and ecological blindness of property rights is at the core of the law’s failure to achieve sustainability. Fundamentally, the legal system needs to be organized around sustainability not property.21 The good news is that these concerns are beginning to sink in. This makes it more and more absurd to separate the world of economics (around property) from the world of ecology (around sustainability). The paradigm of separation is still dominating legal curricula and scholarship, but environmental law has always been about integration, conventionally referred to as “sustainable development”. At its core is the concern for the integrity of Earth’s ecological system. Its realization requires two steps. The first step is to recognize the reality of a complex Earth system with planetary boundaries. Of the nine boundaries identified, at least four have now been exceeded (climate change, loss of

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biosphere integrity, land system changes and altered biogeochemical cycles) and all amplified by Earth System interactions.22 The recognition of planetary boundaries sets a non-negotiable bottom-line for human activities. More particularly, and in the context of the concept of sustainable development, it demands a hierarchical order of its element’s ‘environment’, ‘economy’ and ‘society’: ecological integrity has priority and sets the parameters for social and economic development. The second step is to integrate responsibilities for ecological integrity into the design and interpretation of laws governing human behavior. International law and municipal law alike need to incorporate ecological sustainability as a fundamental norm or grundnorm. A grundnorm can be defined as a basic norm to bind governmental power in the same sense as the rule of law is generally perceived as a basic norm to bind governmental power. This understanding differs from Kelsen’s definition and is closer to Immanuel Kant’s argument that any positive law must be grounded in a “natural” norm of general acceptance and reasonableness.23 The existence of an environmental grundnorm, therefore, rests on the assumption that respecting the planet’s ecological boundaries is a dictate of reason (Gebot der Vernunft) and general acceptance (allgemeine G¨ultigkeit).24 According to Kelsen’s Pure Theory of Law any basic norm can be a grundnorm so long as its bindingness can somehow be established. By contrast, Kant puts any candidate to the test of reasonableness. It certainly seems reasonable to assume the physical reality of a finite planet as generally acceptable and require all social and legal norms to be informed by it. In this vein we can postulate that keeping within planetary boundaries and protecting the integrity of ecological systems are a fundamental requirement for all human actions. Surely, ecological sustainability has grundnorm qualities that any legal norm, including the rule of law, ought to respect.25 4. Transforming Law and Governance In 2016, some 100 scholars of environmental law adopted a manifesto ‘From Environmental Law to Ecological Law’ at the IUCN Academy of Environmental Law Colloquium in Oslo, Norway. The Oslo Manifesto has since been endorsed by numerous environmental lawyers and environmental

law organisations and has also led to the establishment of the Ecological Law and Governance Association (ELGA) in late 2017.26 ELGA is a global network of lawyers and environmental activists that coordinates initiatives for transforming law and governance. One of these initiatives is the Earth Trusteeship Initiatives (ETI), established on 10 December 2018 in the Peace Palace in The Hague, Netherlands. This day marked the 70th anniversary of the adoption of the Universal Declaration of Human Rights.27 With the support and endorsement of many human rights, environmental and professional organisations, the ETI launched the Hague Principles for a Universal Declaration on Responsibilities for Human Rights and Earth Trusteeship.28 The three ‘Hague Principles’ set out the framework for Earth trusteeship. All rights that human beings enjoy depend on responsibilities that we have for each other and for Earth. We cannot live in dignity and well–being without accepting fundamental duties for each other and for Earth. These are trusteeship duties. We must understand ourselves as trustees of Earth.29 As citizens of our respective countries, we must demand our governments to accept Earth trusteeship. State sovereignty implies obligations as trustees of human rights and the Earth. In our current legal system, Earth has no meaning or status (‘ius nullius’). Earth is taken for granted as if it does not need to be protected. On the other hand, we all know that critical planetary systems are at risk (the atmosphere, oceans, global biodiversity). We also know that protection efforts based on negotiations between states have not worked very well. A logical step forward is, therefore, to establish trusteeship obligations of states themselves, rather than relying on political compromises between states. The sovereign state is not so sovereign as to ruin its own territory, transboundary ecological systems, and Earth as a whole. In the light of what we know about our age of human planetary dominance (the Anthropocene), we need to revisit the concept of state sovereignty inherited from an age when a global environmental crisis did not exist.30 Now is the time to advance the concept of sovereignty as a concept of rights and trusteeship responsibilities. The rights of self–determination and non–intervention must be complemented by trusteeship responsibilities for human rights and the Earth.31

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5. Institutionalizing Earth Trusteeship As suggested elsewhere, the ethics of stewardship or guardianship for the community of life is one of the most foundational concepts in the history of humanity.32 It is inherent in the teachings of the world’s religions and the traditions of indigenous peoples and is, an integral part of humanity’s cultural heritage. Yet, our political and legal institutions have not taken Earth ethics to heart. The Earth as an integrated whole may be featuring in images, in science and in ethics, but does not feature in law. Earth and the areas outside national jurisdictions (the global commons) are considered as res nullius, a legal nullity without inherent rights. Not that Earth cares about such rights. It is we humans who must choose to care about them. If we keep ignoring them, then basically we are saying that the Earth system doesn’t really matter. We take it for granted – like sunshine and rain – and of no relevance to the system of law that governs society and states. Given that the ethics of Earth stewardship are widely accepted today we should be ready for taking the next step: Earth trusteeship. Earth trusteeship is the essence of what Earth jurisprudence is advocating. It is also indirectly referred to in key international environmental documents. Earth trusteeship is the institutionalization of the duty to protect the integrity of the Earth’s ecological system. This duty is expressed in more than 25 international agreements – from the 1982 World Charter for Nature right through to the 2015 Paris Climate Agreement.33 To act on this duty ‘states need to cooperate in the spirit of global partnership’ as, for example, Principle 7 of the 1992 Rio Declaration on Environment and Development states. The legal argument for Earth trusteeship can be firmly based on ethics common to all cultures and fundamental obligations of states expressed in many international agreements. The challenge ahead is to convince governments that the step to Earth trusteeship is not only necessary, but actually possible and not too difficult to take. An important part of meeting this challenge is the public debate around the global commons. As climate change has become the most pressing issue of our time – largely thanks to powerful protests of young people all over the world – a shift of thinking seems to be occurring. Rather than having to justify calls for action, people put governments on the back foot: lack of action can no longer be justified. More

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radical measures than negotiating climate deals are needed. To think that global warming can be negotiated is like thinking rainfall and sunshine could be negotiated. The biogeochemical cycles of the atmosphere follow laws of nature, not laws of humans. It is therefore more realistic and promising to take the atmosphere into focus and recognise it in law! At present, the law treats the atmosphere as an open access resource without any safeguards, ie a res nullius. This legal vacuum has worked to the advantage of property owners who have filled the vacuum by exercising their property rights. Any holder of property rights – you and me or the entire fossil fuel industry – can freely emit carbon dioxide into the atmosphere. Only negotiated deals and compromises would limit these emissions. It would be far more effective if property rights are limited by the atmosphere as a global common. This would constitute a legal duty to protect the integrity of the atmosphere as a whole and reverse the logic of emissions: they are only protected by property rights in so far, they do not compromise the integrity of the atmosphere. Emissions would no longer be free, but subject to hefty fees and taxes. As trustees of the atmosphere, states and the international community of states would have a legal obligation to charge users of the atmosphere such as corporations, banks, and consumers, and to progressively ban any greenhouse gas emissions. Just as the owner of a house controls who lives there and under what conditions. From the perspective of citizens, this logic is compelling and could, for example, be supported by the well–established public trust doctrine. The public trust doctrine says that natural commons should be held in trust as assets to serve the public good.34 It is the responsibility of the government, as trustee, to protect these assets from harm and ensure their use for the public and future generations. So nationally, the government would act as an environmental trustee, internationally, states would jointly act as trustees for the global commons such as the atmosphere. Considering that only about 100 companies are responsible for two–thirds of carbons emitted into the atmosphere, atmospheric trust litigation and trusteeship institutions hold promises for preventing climate breakdown.35 The idea of trusts of the global commons has been promoted by environmental lawyers such as Mary Wood36 and Peter Sand37 , and economists such as Peter Barnes38 and Robert Costanza.39 Trusteeship

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governance is also advocated by the general literature on the commons.40 Essentially, international law and the United Nations (UN) are ready to develop institutions of trusteeship governance. There is, for example, a tradition of UN institutions with a trusteeship mandate including the (now defunct) UN Trusteeship Council, the World Health Organization (WHO) with respect to public health and – somewhat ironically – the World Trade Organization (WTO) with respect to free trade.41 A number of other UN or UN-related institutions with weaker trusteeship functions exist also.42 Quite obviously, states have been capable of, expressively or implicitly, creating international trusteeship institutions. These developments – and in particular the existence of supranational organisations such as the European Union – demonstrate that sovereignty of states can be transferred to international levels. The UN Trusteeship Council could be revived as an Environmental Trusteeship Council43 following proposals by the Global Governance Commission in 1995 which were supported by a number of states and particularly championed by the former UN Secretary General, the late Kofi Annan. A combination of environmental activism (the ‘Greta effect’) and new political alliances between motivated progressive states can make a critical difference. Chances are that such combined effort can succeed given the continued disintegration of ecological, financial, political and democratic systems. Trusteeship governance will not be initiated by the ‘top’, i.e. the United Nations or its member states, but rather by global civil society forces outside the UN system. To this end, we can build on many years of activism and proposals for institutional change. Nor should states exclusively run and control global trusteeship institutions such as a possible World Environment Organization or a Global Atmospheric Trust. Rather, their governance ought to be jointly formed by representatives from global civil society, UN and states, each with an equal say in decision–making. 6. Challenges Ahead So far, governments have been very slow learners and, most alarmingly, they have been too close to corporate powers. The challenge for civil society is, therefore, to bring governments back into a position

that allows them to actually govern and help solving the crisis rather than just managing or even exacerbating it. Over centuries, humans have fought voraciously for what they deem to be necessary for a prosperous life. Rights for equality, the right to be heard and several other fundamental rights were once absent and came to be present only because a sustained dialogue was created and furthered. The presence of an issue or the feeling that something is not right by the previous generations sparked the paradigm change in how we live our lives today. The same applies to the environment. From the times of the industrial revolution to the current day, respect and care for nature did not feature in the ideologies of expansionism and capitalism. However, the stark reality that the Earth is finite needs to be understood, appreciated and acted upon. Ecological law encourages us to think about the law from an Earth-centered perspective. But even more than thinking about legal issues, ecological law reflects and advocates a changed mindset. The dominant mindset still believes that we may be able to overcome the ecological crisis through better technology, greater energy efficiency, a green economy and more effective environmental laws. This will not be enough. We need to develop a mindset that is conscious of what has worked in the past and what promises to work in the future. 7. Conclusion It is important to draw from the past. Values and principles of safeguarding nature have guided ancient cultures and indigenous peoples in all parts of the world44 and are also part of the pre-industrial history of Western civilisation.45 After all, if previous generations had not been successful in maintaining at least a degree of sustainability, the present generation would not even be here. It matters, therefore, to realize history and continuity of ecological values and principles. They have also informed modern environmental law, albeit only in a rudimentary form and hidden behind the dominant beliefs of modernity (anthropocentrism, dualism, utilitarianism, expansionism etc.). In essence, ecological law frames our thinking in a way that reflects traditional values of connectedness with nature, but equally leading-edge sciences of today including ecology, Earth system science and health sciences (integrating human

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health into ecosystem health). For building a post-pandemic, sustainable world, nothing could be more relevant.

Endnotes 1 Robert V. Percival and Dorothy C. Alevizatos, Law and the Environment: A Multidisciplinary Reader; Temple University Press: Philadelphia, PA, USA, 1997; p. 208. 2 Klaus Bosselmann, “Losing the Forest for the Trees: Environmental reductionism in the law”, Environmental Laws and Sustainability, Special Issue of Sustainability 2(8), 2010, 2424-2448. 3 Klaus Bosselmann, The Principle of Sustainability: Transforming law and governance, Routledge 2nd 2017. 4 Klaus Bosselmann, ‘Covid-19 could trigger systemic change’; available at: https://www.newsroom.co.nz/ideasroom/ 2020/04/24/1138629/covid-19-could-trigger-systemic-change (accessed 11 December 2020). 5 Christopher Stone, Should Trees Have Standing? (1972) 45 Southern California Law Review 450. 6 Klaus Bosselmann, ‘Wendezeit im Umweltrecht. Von der ¨ ¨ Verrechtlichung der Okologie zur Okologisierung des Rechts’ (1985) Kritische Justiz, 345-361; Klaus Bosselmann, ‘Eigene Rechte der Natur? Ans¨atze einer o¨ kologischen Rechtsauffassung’, (1986) Kritische Justiz, 1-22; Klaus Bosselmann, When Two Worlds Collide: Society and Ecology (RSVP1995); Michael Schr¨oter, Mensch, Erde, Recht: Grundlagen o¨ kologischer Rechtstheorie (Nomos1999); Thomas Berry, The Great Work: Our Way into the Future (Bell Tower/ Random House 1999); Cormac Cullinan, Wild Law: A Manifesto for Earth Justice (Green Books 2003); Peter Burdon (ed.), Exploring Wild Law: The Philosophy of Earth Jurisprudence (Wakefield Press 2011); Peter Burdon, Earth Jurisprudence: Private Property and the Environment (Routledge 2013); Klaus Bosselmann, Prue Taylor (eds), Ecological Approaches to Environmental Law (Edward Elgar, 2017); Peter Burdon, Klaus Bosselmann, Kirsten Engel (eds.), The Crisis in Global Ethics and the Future of Global Governance (Edward Elgar, 2019) Geoffrey Garver, Ecological Law and the Planetary Crisis: A Legal Guide for Harmony on Earth (Edward Elgar, 2021); Anthony Zelle, Grant Wilson, Rachelle Adams, Herman Greene, Earth Law: Emerging Ecocentric Law . A Guide for Practitioners (Wolters Kluwer, 2021); Kirstin Anker, Peter Burdon, Geoffrey Garver, Michelle Maloney, Carla Sbert (eds.), From Environmental to Ecological Law (Routledge, 2021). 7 UN General Assembly resolution 74/224 of 19 December 2019 on “Harmony with Nature”, para. 9(a); available at: https://www.un.org/pga/74/wpcontent/uploads/sites/99/2020/02/A RES 74 224 E.pdf (accessed on 3 January2021).. See also, UN, Harmony with Nature; available at: http://www.harmonywithnatureun.org/ (accessed on 3 January 2021). 8 See, UN, “International Mother Earth Day: 22 April 2020;” available at www.un.org/pga/74/2020/04/21/international-motherearth-day/ (accessed on 3 january 2021). 9 United Nations, Report of the Secretary General: Harmony with Nature, Doc. A/75/266, 28 July 2020, para. 39/40; available at: https://undocs.org/en/A/75/266 (accessed on 11 December 2020).

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United Nations, Report of the Secretary General: Harmony with Nature, Doc. A/67/317, 17 August 2012; availale at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/N12/467/56/ PDF/N1246756.pdf?OpenElement (accessed on 11 December 2020). 11 Geoffrey Garver, ‘The Ecological Rule of Law’, Sustainability 5 (2015), 316-337; Klaus Bosselmann, ‘The Rule of Law in the Anthropocene’, in: Martin, Paul et al. (eds), In Search of Environmental Justice (Edward Elgar 2015), 44-61; 12 Vindana Shiva, Earth Democracy: Justice Sustainability and Peace (South End Press, 2005; Ronald Engel, Laura Wesyra, Klaus Bosselmann (eds), Democracy, Ecological Integrity ands International Law (Canbdridge Scholars, 2010). 13 Klaus Bosselmann, Earth Governance: Trusteeship of the Global Commons (Edward Elgar, 2015); Paulo Maghalaes, Will Steffen, Klaus Bosselmann, Alexandra Aragao, Viriato Soromenho-Marques (eds.), Safe Operating Space Treaty: Managing Earth System Use (Cambridge Scholars, 2016). 14 There is some debate around the beginning and notion of the Anthropocene. In 2019 the International Commission on Stratigraphy, concerned with issues of geological time, agreed on a definition for the Anthropocene (Working Group on the ‘Anthropocene’ of the Subcommission on Quaternary Stratigraphy; available at: http://quaternary.stratigraphy.org/ workinggroups/anthropocene (accessed 17 November 2020). See also the article by science journalist Paul Voosen “Geologists drive golden spike toward Anthropocene”, Greenwire, 17 Sept. 2012; available at: http://www.eenews.net/stories/1059970036 (accessed on 11 December 2020). 15 Global Footprint Network; available at: http://www. footprintnetwork.org/en/index.php/GFN/page/world footprint/ (accessed on 11 December 2020). 16 Richard Schlatter, Private Property: The history of an idea (Rutgers University Press 1951); Eric Freyfogle, The Land We Share: Private Property And The Common Good (Island Press 2003) 11 See Karl Pohlanyi, The Great Transformation (Beacon Press 1944); generally acclaimed as the most influential work on economic history. 17 Edward Gonner, Common Land and Inclosure (Cass 1966); Deidre McCloskey, ‘The Economics of Enclosure’ in William Parker and Eric Jones (eds.), European Peasants and Their Markets: 18 Klaus Bosselmann, ‘Property Rights and Sustainability: Can they be reconciled?’ in David Grinlinton, Prue Taylor (eds.), Property Rights and Sustainability: The Evolution of Property Rights to Meet Ecological Challenges (Martinus Nijhoff 2011), 23-42. 19 Bosselmann, see note 2 at 2430. 20 See, for example, Christina Voigt (ed.), Rule of Law for Nature: New Dimensions and Ideas in Environmental Law (Cambridge University Press, 2013). 21 David Grinlinton, Prue Taylor (eds.), see note 18. 22 Steven Lade, Will Steffens et al., ‘Human Impacts on Planetary Boundaries Amplied by Earth System Interactions’, Nature Sustainability 3 (2020), 119-128. 23 Bosselmann, see note 3 at 94. 24 Ibid. 25 Klaus Bosselmann, “The Imperative of Ecological Integrity: Conceptualising a Fundamental Legal Norm for a New ‘World System’ in the Anthropocene” in: Kotz´e, L. (ed.), Environmental Law and Governance for the Anthropocene (Hart, 2017), 241-265; “Grounding the Rule of Law”, in: Voigt, supra note 18, 75-93.

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‘Oslo Manifesto’ (ELGA, June 2016); available at: https://elgaworld.org (accessed on 11 December 2020). 27 Our Mission, Our Vision’ (ELGA, 2020); available at: https://elgaworld.org/oslo-manifesto (accessed on 11 December 2020). 28 ‘The Hague Principles’ (Earth Trusteeship, 2020); available at: www.earthtrusteeship.world/the-hague- principlesfor-a-universal-declaration-on-human-responsibilities-andearth-trusteeship/ (accessed on 11 December 2020). 29 See also the ‘Declaration on Education for Earth Trusteeship’ adopted in Bangkok on 20 February 2020; available at: https://www.schoolforwellbeing.org/c.php?id=35 (accessed on 11 December 2020). 30 Nico Schrijver, ‘The Dynamics of Sovereignty in a Changing World’ in Konrad Ginther, Erik Denters and PJIM De Waart (eds) Sustainable Development and Good Governance (Kluwer Law International, 1995), 80–89. 31 Eyal Benvenisti, ‘Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders’ 107 (2) American Journal of International Law (2013), 295; Klaus Bosselmann, “The Role of Trusteeship in Earth Governance”, in: Laura Westra, Klaus Bosselmann and Matteo Fermeglia (eds.), The Perspective of Ecological Integrity in Science and Law (Springer, 2020), 218-232; 32 Klaus Bosselmann, ‘The Next Step: Earth Trusteeship’, Address to the United Nations General Assembly, 2–3 April 2017; available at: http://files.harmonywithnatureun.org/uploads/ upload96.pdf (accessed on 11 December 2020). 33 Rakhyun E Kim, Klaus Bosselmann, ‘Operationalizing Sustainable Development: Ecological Integrity as a Grundnorm in International Law’ 24(2) (2015) Review of European, Comparative and International Environmental Law 194, 194–208. 34 Anthony Zelle et al., see note 6, 185-200. 35 Klaus Bosselmann,’The Atmosphere as a Global Commons’, in: Jaria Manzono, J. and Borras, S. (eds.), Research Handbook on Global Climate Constitutionalism, Edward Elgar, 75-87; Bryce Lyall, ‘The Prospects for Atmospheric Trust Litigation in New Zealand’, New Zealand Journal of Environmental Law, 23 (2019), 215. 36 Mary C Wood, ‘Nature’s Trust: A Legal, Political and Moral Frame for Global Warming,’ (2007) 34(3) Environmental Affairs 577; Mary C Wood, Nature’s Trust: Environmental Law for a New Ecological Age (Carolina University Press, 2013). 37 Peter H Sand, ‘Sovereignty Bounded: Public Trusteeship for Common Pool Resources,’ (2004) 4(1) Global Environmental

Politics 47; Peter H Sand, ‘The Rise of Public Trusteeship in International Law’ (2013) Global Trust Working Paper Series 04/2013, 21; Peter H Sand, ‘The Concept of Public Trusteeship in the Transboundary Governance of Biodiversity’ in Louis Kotz´e and Thilo Marauhn, Transboundary Governance of Biodiversity (Brill, 2014). 38 Peter Barnes, Capitalism 2.0: Who Owns the Sky? Our Common Assets and the Future of Capitalism (Island Press, 2001); Peter Barnes, Capitalism 3.0: A Guide to Reclaiming the Commons (Berret-Koehler, 2006). 39 Robert Constanza ‘Claim the Sky’, Solutions 6/1, 2015; available aT; https://www.academia.edu/31379379/Claim the Sky (accessed on 2 January 2021). 40 See, for example, David Bollier, Think Like a Commoner: A Short Introduction to the Life of the Commons (New Society Publishers, 2014); David Bollier, Burns H Weston, Green Governance: Ecological Survival, Human Rights and the Law of the Commons (Cambridge University Press, 2013); Silke Helfrich, J¨org Haas (eds), The Commons: A New Narrative for Our Time (Heinrich B¨oll Stiftung, 2009); Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge University Press, 1990). 41 Bosselmann, see note 13, 198–232. 42 Ibid at 206 43 Kul Chandra Gautan, ‘Transforming the United Trusteeship Council for Protection of the Earth System’, in: Maghaeleas et al., supra note 10, ch. 12; Bosselmann, supra note 31, at 5; Bharat H. Desai, ‘On the Revival of the United Nations Trusteeship Council with a New Mandate for the Environment and the Global Commons’, Yearbook of International Environmental Law , vol.27, (2016), 3-27; Bharat H. Desai, ‘On the Revival of the United Nations Trusteeship Council with a New Mandate for the Environment and the Global Commons’, Environmental Policy and Law, vol.48, no.6, (2018), 333-344; Nicholas Robinson, ‘Making Environmental Law Function in the Anthropocene’, in this volume. 44 Recent legal changes in New Zealand granting rights to natural objects are reflective of a changing mindset that respects traditional Maori guardianship (“kaitiakitanga”); Klaus Bosselmann and Timothy Williams, “The River as a Legal Person: The Case of the Whanganui River in New Zealand”, in: International Center on Water and Transdisciplinarity (ed.), Water, Sharing and Peace Culture (forthcoming 2021). 45 Ulrich Grober, Sustainability: A Cultural History (Greenbooks, 2012).

PART II: PROCESSES

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Our Earth Matters. B.H. Desai (Ed.) IOS Press, 2021 © 2021 The authors and IOS Press. All rights reserved. doi: 10.3233/STAL210008

International Environmental Law-Making Bharat H. Desai∗ Professor of International Law, Jawaharlal Nehru Chair in International Environmental Law and Chairman, Centre for International Legal Studies, School of International Studies, Jawaharlal Nehru University, New Delhi.

Abstract. The article seeks to make a modest effort in making sense of the international environmental law-making process. It comprises the subtle normative process currently at work, including ‘global conferencing’ technique resorted to by the UN General Assembly, how it draws upon the basic legal underpinnings of international law, the unique treaty-making enterprise at work, and what this enormous legal churning process portends for the protection of the global environment at this critical time of perplexity in the Anthropocene epoch. It calls for taking serious cognizance of mass destruction of plant and animal species, heavy pollution of fresh water resources, choking of the oceans with plastic and other litter, and alteration of the atmosphere, among other lasting impacts that imperil our only abode Earth. International environmental law-making process is ad hoc and piecemeal and is generally understood to be the product of a lack of a single, central specialized institution having expertise on the subject, scientific uncertainty on many environmental issues, and the hard-headed economic interests of sovereign states. Still, the international environmental law-making process with its inherent resilience could possibly be able to adapt to the vagaries of scientific assessments and the political realities of in the future. Keywords: Global environmental problematique, anthropocene epoch, international environmental law-making process, multilateral environmental agreements, institutionalized international environmental cooperation

The traditional law-making process in the field of international law has been premised upon the consent of states, which remain the primary subjects of international law. The process of deciphering law as it stands is important. We find different sources such as international conventions, international custom, general principles of law, and other subsidiary means, as prescribed in Article 38(1) of the Statute of the International Court of Justice (ICJ).1 International law has had a chequered history in terms of its normative character. Much The article is a revised and thoroughly updated version of a lecture that was originally designed to be delivered upon the author taking over as the Jawaharlal Nehru Chair Professor on 6 May 2004. Drawn from original publication in Yearbook of International Environmental Law, Vol. 29, No. 1 (2018), pp. 3–32; Advance Access published on January 9, 2020. Reprinted with permission from Oxford University Press. ∗ Corresponding author. E-mail: [email protected].

before the advent of codification through treaty-making to give concrete shape to law, various facets of inter-state conduct were based upon customary practices and rules among states. For instance, the 1961 Vienna Convention on Diplomatic Relations (VCDR)2 codified the institution of diplomatic relations that had grown through long-standing customary practices among the states. In fact, the ground rules concerning ‘treaty making’ were elevated from customary law into codified form through the 1969 Vienna Convention on Law of Treaties (VCLT).3 Thus, both of these major ‘institutions’ of international law were codified following the painstaking efforts of the International Law Commission (ILC) – a subsidiary organ of the United Nations (UN) General Assembly (GA) – as it took twenty years (from 1949 to 1969) and eleven years (from 1949 to 1961) for the law on treaties and on diplomatic

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immunities, respectively, to fructify. Those aspects of law that are not covered under these conventions continue to be governed by customary rules. Since the establishment of the UN, the task of progressive development and codification of international law has grown by leaps and bounds. It is in this context that this article seeks to make a modest effort in making sense of the international environmental law-making process. It comprises the subtle normative process that is at work, including ‘global conferencing’ resorted to by the UNGA, how it draws upon the basic legal underpinnings of international law, the unique treaty-making enterprise at work, and what this enormous process portends for the protection of the global environment at this critical time of perplexity in the Anthropocene epoch,4 following humankind’s mass destruction of plant and animal species, its pollution of the oceans, and its alteration of the atmosphere, among other lasting impacts.

1. Quest for a Threshold Compared to the traditional modes of law-making in various spheres of international law, efforts to address some of the pressing environmental challenges, especially during the last quarter of the twentieth century, have witnessed unprecedented international legal restraints upon the behaviour of states. The practice of states has been in favour of prescribing a threshold for specific activity rather than outright prohibition per se. This technique, over the years, has taken the form of ‘quotas,’ ‘ceilings,’ ‘timetables,’ ‘voluntary commitments’, ‘nationally determined contributions’ and other tools. Interestingly, the process of law-making on most of the sectoral environmental issues has been generally linked to scientific evidence on the issue in question. Moreover, the number of states and other international actors participating in the negotiations, the number and frequency of the intergovernmental meetings organized, as well as the range of forums utilized for this purpose have made the law-making process unique in this field, compared to any other branch of international law. International environmental institutions often act as catalysts in this process.5 These institutions are both products of the law-making process as well as contributors to it. As such, they are an integral part of the international environmental law-making process.

2. Treaty Galore In the law-making process, multilateral environmental agreements (MEAs)6 are the ‘predominant legal method for addressing environmental problems that cross national boundaries.’7 Moreover, they are in fact part of a broader trend of ‘increasingly more complex web of international treaties, conventions, and agreements’ (on the basis of topic, sector, or territory).8 The continuous process of law-making becomes necessary in order either to justify the existing law or to make a new law that grapples with new problems. This ensures the continuous revitalization of the law. The employment of new tools and techniques as well as sheer range of issues covered and unprecedented number of sovereign states participating in it characterizes the law-making process in this rapidly expanding branch of international law. In view of the commonalities of interests for the common concerns and the workability of the lowest common denominator approach, ‘state sovereignty’ per se does not pose an insurmountable problem. Depending upon the level of consensus that emerges from negotiations, states are willing to ‘share’ their prerogative of sovereign consent for regulating a specific problem area in a global framework. In view of the very nature of present-day environmental challenges, the legal responses have started to affect the day-to-day lives of people across the globe, as it is no longer confined only to matters of high state affairs. This expansion of international environmental law may be regarded as pervasive. It has been pertinently observed: International Environmental Law links individuals and their local governments into a worldwide network. This system is not often perceived locally, because each country’s own legislation and institutions are assigned the job of applying the shared environmental rules. However, when one considers how the weather transports air pollution, how species migrate, how trade of a food product like coffee can carry pesticide residues, how tourists, business staff, or visitors move daily around the world, it is evident that each country needs to undertake roughly equivalent environmental protection measures. Law is the mechanism for defining and applying those services.9

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It can be attributed to the development of both MEAs (so-called hard law) on a variety of sectoral issues as well as a host of other rules and standards (now widely known as soft law) for regulating state behaviour. The web-like structure of the multilateral environmental regulatory framework is gradually thickening in terms of its range as well as its content, notwithstanding its partial and uneven growth. The final form of hard law still requires explicit consent from states (expressed through signature, followed by ratification or accession of the legal instrument in question). Interestingly, the law-making process is not the exclusive preserve of states alone, as it is effectively becoming influenced and shaped by a host of non-state actors, including intergovernmental organizations, non-governmental organizations as well as think tanks, academic institutions, business groups, and individual experts. Some intergovernmental institutions in the environmental field do actively contribute to the process. In a way, they act as a catalyst, providing a platform for states and facilitating negotiations by enabling vital scientific input on the sectoral environmental issue in question. In recent years, the emergence of several MEAs was actively shaped by international institutions on issues such as ozone layer depletion (the United Nations Environment Programme (UNEP)), climate change (World Meteorological Organization and UNEP), transboundary movements of hazardous wastes (UNEP), and persistent organic pollutants (Food and Agricultural Organization (FAO) and UNEP. This sui generis law-making process has started making inroads into the cherished domain of the sovereign jurisdiction of states. The increasing need for international environmental cooperation has propelled states to come together on common platforms, including institutional ones. The notion of ‘sharing sovereignties’ for some common concerns is now gaining firm ground in multilateral environmental negotiations. If one examines the growing mosaic of international environmental law, one cannot but feel the absence of a central law-making institution, which could give a coherent shape and direction to the development of law. The law-making process hitherto has been distinctly characterized largely by ad hoc, need-based and sectoral responses. The remarkable growth of the sectoral environmental regulatory framework testifies to this fact. As a result, sector-specific rules and principles have proliferated in areas ranging from the atmosphere

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(for example, air pollution, ozone, climate change, and so on), to transboundary movements of substances (for example, hazardous wastes, chemicals, mercury and so on), to the conservation of living resources (endangered species, migratory species, wetlands, biological diversity, and so on). Many of the earlier MEAs were largely a result of the perceived need to take conservation or protection measures. Moreover, except for certain exceptional cases, the main thrust of these sectoral regulatory measures has been, primarily, anthropocentric—that is, to protect long-term human utilitarian interest in a species or a natural resource. Most of these hard instruments have not ended being a one-time process as they have not adopted a comprehensive approach in negotiating a MEA, which was especially witnessed during the marathon negotiations on the Convention on the Law of the Sea (from 1973 to 1982) that resulted in the ‘Constitution for the Oceans.’10 This event imparted lessons in putting all issues into a single basket of negotiations for a threadbare discussion and arriving at a text on the basis of consensus. In the context of environmental issues, the negotiating process is often faced with the requirement for immediate action, usually in the face of little concrete scientific evidence on the issue as well as a high degree of adaptability in the legal system to rapid and frequent change. Compared to earlier traditional treaty-making experiences, environmental issues are generally surrounded by a considerable amount of scientific uncertainty as well as high political and economic stakes for states, especially the powerful ones. Cumulatively, these factors propel states to pursue a legal instrument that can gradually evolve and unfold, while it accommodates competing interests. Therefore, in the case of most of the recent MEAs, the so-called hard law turns out to be not so hard in actual practice. MEAs that emerge as a product from marathon negotiations, spread over a relatively short time span, generally enshrine a framework or a skeleton. In turn, it necessitates a step-by-step process to harden the commitments and to flesh out the skeleton (which includes the definition of the core elements, removing calculated ambiguities and spelling out the details of the mechanisms in the convention). This process is mainly conditioned by the economic and political exigencies of the states parties, as compared to scientific evidence or legal requirements per se. Thus, many of the MEAs

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provide a bare framework, which must be supplemented by ‘fleshing out’ the subsequent legal instruments (generally known as protocols). In this sense, some of the hard legal instruments comprise soft obligations at their core (a hard shell with a soft belly). Thus, Arnold McNair argues, there is a need to jettison the traditional notion that all treaties are governed by a single set of rules in view of material differences in different types of treaties. Instead, they may be judged from their contents, which will ‘affect their legal character as well.’11 The VCLT was an ambitious codification process that was based on the premise of the ‘ever increasing importance of treaties as a course of international law’, but it still did leave room for ‘rules of customary international law [that] will continue to govern questions not regulated by the provisions of the present Convention.’12 Many of the traditional multilateral agreements among states, especially concerning the sharing of common international resources such as water, did enshrine provisions prohibiting the fouling or pollution of waters as well as a state’s responsibility for this purpose. Issues of mainly regional concern such as acid rain and air pollution as well as the protection of flora and fauna followed later. The range of issues sought to be addressed within the framework of multilateral agreements in the past five decades, however, is quite remarkable. States are gradually more inclined, it appears, towards specialized multilateral agreements as a mode of grappling with environmental problems of a global character. The unprecedented range, complexity, and nature of the MEAs that result from global environmental negotiations surpass law-making endeavours in any other sphere of international law. As a corollary to it, various institutional structures have taken shape, which provide platforms for continuous institutionalized cooperation in the respective sectoral area. These institutions provide not only a servicing base for the contracting states to a MEA but also play an important role in the built-in law-making process enshrined into it. Therefore, many of the MEAs remain works-in-progress even though they are encapsulated in a hard treaty shell. The emerging framework of MEAs has engaged an overwhelming number of states in multilateral negotiations. One of the important factors influencing these negotiations is the balance between ‘national sovereignty and international interdependence.’13 The unfolding scenario reveals

that more and more states are gradually opting for legal, as well as institutional cooperation within multilateral frameworks for a host of environmental issues. A variety of factors are influencing state behaviour in this context. A number of non-state actors, variously recognized under the broad umbrella of major groups or the civil society or stakeholders, are increasingly playing an important role in this process. Significantly, a notable feature of these negotiations (as well as of the MEAs resulting from them) is that they do not remain a one-time affair, especially due to the nature of the issues addressed. Most of these MEAs reflect a process, comprising several components that critically depend upon the emergence of consensus and the political will of the states to move ahead on the issue. The cumulative political and legal effect of the series of instruments adopted by states on a given environmental issue can be described by the nomenclature as a ‘regime.’ Irrespective of the binding or non-binding character of the obligations contained in these instruments, they have a gradual, pervasive regulatory effect on state behaviour. In turn, they make significant inroads into the domestic environmental policy and law-making process of states. There has been huge growth in international instruments concerning environmental issues. It is estimated that during the period from 1857 to 2012, some 747 instruments were concluded in the field.14 The latest treaty has been the much-celebrated 2015 Paris Agreement.15 These instruments could be construed as MEAs, though the actual environment-specific modern treaties came into vogue in the aftermath of the 1972 Stockholm Conference. MEAs arrived at in recent years have a great diversity, and most of them underscore the global character as well as the multi-dimensional nature of environmental problems. Interestingly, there is an increasing tendency among states, especially industrialized ones, to push for a global framework for more and more environmental issues. There is, however, also a lot of scepticism and even some opposition to this approach. This attitude often makes multilateral environmental negotiations acrimonious and virtually a battlefield on such issues. In turn, it reflects the political and economic interests of states that often results in a stalemate.16 The subject matter of MEAs cover a wide range of issues that include the protection of a species (whales) or flora and fauna in general, cultural and heritage sites, the regulation of trade of hazardous

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chemicals and wastes, air pollution, and persistent organic pollutants to more remote issues like ozone depletion, climate change, and biological diversity. The MEAs on a host of these issues have in fact ‘changed over time, just as political, economic, social, and technological conditions have changed over time.’17 The increasing reliance upon this source of international environmental law presents long-term implications for the law-making process as well as for the body of international law as a whole. The complex regimes created by the varied MEAs have generated debate about the need for, and efficacy of, such forms of ‘global governance.’18 The complex web of these regimes—the sheer art and craft used therein—the built-in law-making mechanisms, the inherent flexibility, the large participation of states, the role of non-state actors, and the issues of implementation and compliance need to be taken into account to assess the efficacy of such multilateral regulatory techniques to address global environmental problematique. 3. ‘Soft’ Law as a Convenient Tool A widely used method of environmental law-making is the adoption of hortatory, inspirational, promotional, or programmatic statements. These statements could be described generally as declarations, conference statements, or statements of principles. The traditional modes of international law-making have evolved over a period of time, are time consuming, and have a built-in rigidity that must adapt to the sense of urgency that is necessary to address an environmental issue. In view of this and where states are not yet ready to make concrete commitments, they often prefer to use politically convenient ‘soft instruments.’ These instruments are less formal than the so-called ‘hard law’ that comes in the form of MEAs.19 However, even such soft instruments do go through intense and serious negotiations. In fact, the proceedings of many Conferences of the Parties for various MEAs reveal that the process of consensus building on a declaration or conference statement can be arduous and time consuming. The negotiations can stretch on for hours beyond the conference schedule. Many of these ‘soft’ instruments provide benchmarks that are often invoked by the parties even as the ‘regime’ evolves gradually. The need to arrive at consensus on the final declaration or a statement or specific outcome

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is considered so crucial that the duration of the conference is often extended to allow the negotiations to reach a conclusion.20 In this process, the negotiating states do try to build a basis for an evolving normative process through consensus on a hortatory (non-legally binding) instrument. Here, the intention of the negotiating states is to have elasticity in the interpretation that is politically convenient to them as well as to retain the option of implementation at their own discretion and pace. Apart from the language of the instrument, the difference lies in the intended outcome by the states that are negotiating such a ‘soft’ instrument. If an international instrument is not intended by the parties to establish legal rights and obligations among them, it is generally regarded as being devoid of legal character. In fact, the intention of the parties is a material element without which an agreement is regarded ‘sans portee juridique.’21 The framers of such instruments do make their intention clear either through explicit reference to it or through the phraseology employed. It may even be implied from the instrument or inferred from the circumstances as well as the subsequent conduct (practice) of the parties. At the normative level, these so-called soft rules or principles generally lack the requisite characteristics of international legal norms proper. Hence, they are legally regarded as non-binding. It would be more appropriate to state that negotiating states design them in such a fashion that they remain uncertain in application, with ‘calculated ambiguity,’ and generate conflicting signals.22 Politically, this design suits most states, especially in the case of newly emerging areas, since they would rather wait for the normativity to harden. State practice reveals that, in the aftermath of both the 1972 UN Conference on the Human Environment (Stockholm Conference) and the 1992 UN Conference on Environment and Development (Rio Conference), most states preferred to implement the outcome of these global conferences at their own pace and convenience as well as to interpret them as it best suited them. In effect, such built-in drafting ambiguity may create a misleading impression about the legal force of an instrument (calling it non-legal soft law). Still, it can be argued that it ‘promotes feelings of international comity and cooperation that are very valuable.’23 This is especially true for states that do not wish to have specific ceilings, timetables, deadlines, or other

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forms of verifiable prescriptions that impinge upon their sovereign will. At the core of the efforts to put into place such a normative framework is the widely accepted view that it should be permissive in nature and that it should reflect the desire of states to ensure flexibility as well as room for manoeuvring. In such cases, states prefer to retain the discretion that is revealed in the language such as ‘as far as possible and as appropriate’ and ‘with its particular conditions and capabilities.’24 Such usage reflects the sharp differences stemming from the conflict of interests among states as well as the fragile consensus that has been delicately arrived at in the final outcome of the negotiations. At the stage of negotiation, states engage in in-depth parleys with the same seriousness that they would use in the case of a MEA. The crucial difference lies in the terms of the intended consequence, as they are considered as guiding norms and are not even subject to procedures of signature and ratification. Such norms and the instruments with which they are clothed signify that the states regard them as politically important but devoid of legal consequence. As aptly pointed out by Baxter, There are norms of various degrees of cogency, persuasiveness, and consensus which are incorporated in agreements between States but do not create enforceable rights and duties. They may be described as ‘soft’ law; as distinguished from the ‘hard’ law consisting of treaty rules, which States expect, will be carried out and complied with.25 Thus, it is not surprising that soft law has played a significant role in the evolution of normative structure in various areas of international law, such as human rights, economic law, and now environmental issues. It is generally regarded that the hardness or softness of a rule ‘does not, of course, affect its normative character.’26 In fact, it can be considered to reflect the transitory stage of the normative threshold with an inherent expectation that the states party to it ‘will gradually conform their conduct to its requirement.’27 Most states, traditionally, are inclined to opt for some latitude in terms of giving effect to the behaviour that is expected of them within a prescribed normative framework. The knowledge that the instrument they are negotiating is not intended to be legally binding propels them to take every care to

see that its prescriptive value does not go too far and tie their hands. Instead, they would prefer to let it harden over time, gradually. 4. Tools and Techniques Soft law norms have their own significance at the normative level. Differences do persist in regard to their precise effect and their evolution into hard law. The mushrooming of soft law instruments in recent years underscores that states increasingly prefer them since they allow for the gradual crystallization of law proper on the subject. It has been metaphorically regarded as a rhetorical talisman and a ‘Trojan horse’28 that opens the course for the development of law by its sheer presence. The instrumentality for framing such soft law instruments is varied both at the intergovernmental and non-governmental levels. At the intergovernmental level, some of the common forums for adopting soft law include UNGA resolutions, decisions, or statements of multilateral conferences and other decisions of intergovernmental forums. The circumstances in which they are adopted, the numbers of participating states as well as the manner of their adoption, often without a vote, contribute to imparting a significant normative halo around them. The UNGA, as plenary organ of the UN, has had a significant role to play in terms of declaratory principles on a variety of subjects. This has encompassed varied aspects of contemporary global concern such as principles of self-determination, decolonization, friendly relations, new international economic order, and human rights as well as some of the ‘common concerns of humankind’ (for example, ozone depletion and climate change). The recent process undertaken with respect to the French initiative and the resultant UNGA resolution (72/277 of 10 May 2018) concerning a ‘Global Pact for the Environment’29 is a case in point. As compared to expectation for a legally-binding ‘Global Pact’, the UNGA endorsed (resolution 73/333 of 30 August 2019) report of the ad hoc open-ended working group (after three rounds of Nairobi process during January to June 2019) and ‘all its recommendations’. In turn, the UNGA asked the United Nations Environment Assembly (UNEA) ‘to prepare, at its fifth session, in February 2021, a political declaration for a United Nations high-level

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meeting’ that will coincide with commemoration of 50 years creation of UNEP.30 Due to unprecedented COVID-19 pandemic, the online first part of the fifth session of the UNEA took place on 22-23 February 2021. It decided to resume as in-person meeting in February 2022, ahead of the Stockholm+50 (2022) event. The final follow-up will remain with the UNGA. Thus, in overall supervision, the UNGA virtually acts as a ‘conductor of a grand orchestra’31 in concerted environmental regulatory process. In fact, in the emerging scenario, it will become necessary to address environmental issues of global ramification such as ‘plastics pollution’ as a new common concern of humankind.32 The familiar technique used in these resolutions comprises the general conduct expected from states on a given issue. In doing so, the resolutions invoke, by usage of terms such as recalling, reiterating, and so on, previously established customary norms or other authorities or the indication of new norms that could be said to have emerged from the practice of states—what states say and how they conduct themselves in actual practice.33 The marshalling of this evidence could provide the necessary basis and justification for the political–moral values of a particular resolution. In the process, the principles laid down for the regulation of state behaviour led to the development of significant ‘evidentiary’ value. However, their hortatory form per se does not diminish their value as emerging norms. In normal circumstances, resolutions adopted by organs of international organizations (such as the UNGA) have a recommendatory character.34 There has been a great debate concerning the legal effect of such resolutions. Some of these resolutions are passed with an overwhelming majority of states voting in their favour, and they go through a very careful drafting process. Such declaratory statements may have non-binding value for the member states of the organization; however, they do create binding effect for the organization and its organs.35 As such, the decisions are taken and the resolutions adopted by the concerned decision-making organs of other international organizations [for instance, the United Nations Educational, Scientific and Cultural Organization (UNESCO), the World Health Organization (WHO), the International Maritime Organization (IMO), the World Meteorological Organization (WMO), and so on] also have from time to time taken similar measures in their respective functional spheres.

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Prior to the change in its nomenclature as UN Environment Assembly (UNEA), the Governing Council of UNEP (as a subsidiary organ of the UNGA) did adopt a number of decisions and guidelines,36 which have become trendsetters in initiating soft law instruments, and, in some cases, they have graduated into hard law instruments (for example, the 1987 Cairo Guidelines and Principles for the Environmentally Sound Management of Hazardous Wastes, which took the shape of the 1989 Basel Convention on Transboundary Movements of Hazardous Wastes and Their Disposal).37 In fact, UNEP’s Montevideo Programme38 was explicitly designed to have such a catalytic role in the development of environmental law, notwithstanding the absence of any explicit mandate in the constituent instrument for this purpose.39 This appears to be a fine example of the use of implied powers by a subsidiary organ of the UNGA. The development of soft law principles in areas such as human rights, following the adoption of the Universal Declaration of Human Rights,40 or international economic law, after the adoption of the Declaration on the New International Economic Order (NIEO)41 and the Charter of Economic Rights and Duties of States,42 show the crucial role played by such declaratory norms at the international level. In the specific case of international environmental law, a series of such declaratory norms enshrined in the Stockholm Declaration,43 the World Charter for Nature,44 the protection of global climate,45 and the Rio Declaration46 have made a similar impact on the legal developments in the field. As mentioned earlier, the UNGA-mandated process47 (vide Resolution 72/277 of 10 May 2018 that finally led to adoption of Resolution 73/333 of 30 August 2019) for a ‘Global Pact for the Environment’ would also fall in this category of instruments. 5. Hard Law with A Soft Belly Apart from the instrumentality of declaratory statements by organs of intergovernmental organizations and multilateral conferences, normative principles and statements can also be enshrined in MEAs. This might add complexity to the hard instrument, which is prima facie legally binding upon parties. Such inclusion of hortatory principles or discretionary provisions as a part of a formal MEA does present an anomalous situation.

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In view of the resulting ineffectiveness of such instruments, it ‘relegates them to the ranks of non-legal norms. . . notwithstanding their status.’48 Thus, a formal structure or form of a multilateral treaty (legal) instrument neither provides an evidence and nor sufficient enough to ensure the hardness or binding character of the law. In this context, ‘legal hardness’ accounts for the legally binding character of a provision. Therefore, the test of a legal norm as ‘soft in all its dimensions’ could include its content, authority, as well as control or intention.49 In many cases, such soft obligations are injected into the text of an agreement as a compromise formula or sheer calculated ambiguity to gain elusive consensus (which may be on account of a lack of political will among the negotiating states or a lack of concrete scientific evidence or uncertainty) on an issue among the negotiating states, with no immediate intention of making them effective. Such a consciously built-in contradiction, in the form of a hard treaty shell with a soft underbelly, mainly seeks to woo recalcitrant states to enter the framework as well as avoiding potential ‘hold-out’ problems. It is a ‘consciously premeditated technique’ used by negotiators to accommodate the hard-headed political and economic interests of the participating states.50 Interestingly, the VCLT does not make it a prerequisite for international treaties to enunciate any specific legal rights and obligations. It merely requires an international agreement to be in ‘written form and governed by international law.’51 Therefore, it is entirely up to the parties to prescribe the nature and content of the multilateral agreement. As the recent practice of designing ‘framework’ conventions reveals, negotiating states explicitly do not intend to lay down hard commitments in the first round itself. In such cases, the instrument in question will be incomplete without subsequent steps to work out the supplementary protocols or agreements to build upon the normative framework prescribed in the agreement. The task of fleshing out the skeleton of the agreement in such cases is done by the subsequent instrument that may be given nomenclature as the states deem it fit. Thus, without some subsequent follow-up measures, the normative value of the framework convention remains incomplete. It is basically a result of the built-in law-making process and ensures the gradual evolution of a legal regime as the political consensus materializes. It, in turn, requires application of deft legal engineering skills as the original

ad-hoc instrument itself remains literally a work-inprogress. It entails innovative legal craft of building the edifice brick by brick over a period of time. There are examples of recent MEAs as ‘frameworks’ that incorporate soft obligations within a formal multilateral treaty. Some of these agreements portray the miasma (illusion) of a non-legal norm as law. The 1985 Vienna Convention for the Protection of the Ozone Layer was adopted following scientific warnings.52 When the ad hoc Working Group of Legal and Technical Experts started work (in 1981) on the issue, it was surrounded by considerable scientific uncertainty, with divided opinions as well as the rejection of such concerns by some states. This accounted for some of the ambiguity in the convention and the use of discretionary language for obligations of the states parties. As such, the parties were merely required to take ‘appropriate measures’ and, for this purpose, in accordance with the ‘means at their disposal and their capabilities.’53 Thus, the nature of the obligations laid down was quite permissive and discretionary. The convention was tightened up with the adoption of a specific time frame for phasing out controlled ozone-depleting substances (ODS) in the subsequent 1987 Montreal Protocol on Substances that Deplete the Ozone Layer.54 In view of the availability of further scientific evidence (through satellite pictures that showed the widening of the ozone hole), the crystallization of political consensus, the acceptance of ‘grace periods’ for developing country parties, and the agreement on making funding available as well as providing substitutes for ODS, the parties to the Montreal Protocol quickly decided to strengthen and even ‘pre-pone’ the phase-out schedules through ‘amendments’ and ‘adjustments’ at a series of subsequent meetings. Thus, the ozone regime has constantly evolved, from initial loose and soft obligations to a stringent time schedule and specific obligations for the parties, which have been kept under constant review by the parties, in consonance with scientific projections. It now regulates the production and consumption of nearly 100 man-made chemicals referred to as ozone depleting substances. Through the concerted regulatory process under the Protocol, ratified by all the UN Member States, the ozone layer is projected to recover by the middle of this century. It is claimed that in the absence of this Protocol, ‘ozone depletion would have increased tenfold by 2050 compared to current levels’.55

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Similarly, the 1989 Basel Convention on Transboundary Movements of Hazardous Wastes and their Disposal came in the wake of reports of unlawful hazardous waste dumping in several parts of the world, especially in the African continent.56 In view of the nature of the issue as well as the short time span within which it came to be drafted, some of the key formulations in the convention were kept vague and even left undefined. For instance, the core issue of ‘environmentally sound management of hazardous wastes’ was merely defined as necessitating ‘all practicable steps,’57 and the parties were expected to settle the issue of liability and compensation for damage resulting from the transboundary movement of hazardous wastes by adopting a protocol ‘as soon as practicable.’58 In fact, the parties to the original convention did not define hazardous waste at all. It was this key component on which the regulation of export and import of wastes was to be premised. Moreover, it vested discretion in the exporting state not to allow the export of hazardous wastes if it had ‘reason to believe’59 that they would not be managed in an environmentally sound manner (which was also left undefined). In view of the sharp polarization of views and the conflict of economic interests of the hazardous waste-exporting countries, consensus on these issues remained elusive. It appears that the negotiating states expected that the economic interests of the exporting and importing states would provide the basis for judging the parameters of such practical steps. Interestingly, when the parties reached an agreement in 1994, after arduous negotiations on the ‘Basel Ban,’ which sought to prohibit the export of hazardous wastes from countries in the Organisation for Economic Co-operation and Development (OECD) to non-OECD countries, they could not reach an agreement on prescribing criteria and elements for defining hazardous wastes, which was to take shape later amidst hard bargaining.60 In fact adaptability of the Basel Convention and gradual process of tightening up of ‘soft normativity’ came in handy in view of global outcry against the growing menace of plastic wastes. It has now led to adoption of an amendment at the 14th meeting of the Basel Conference of the Parties (Geneva), during 29 April to 10 May 201961 , wherein the parties decided to include plastic waste in a legally-binding framework which will make global trade in plastic waste more transparent and better regulated. This goes to underscore the softness of obligations as well as the

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calculated ambiguity left in a MEA, which is mainly dictated by the economic interests of the industrialized states. We can find similar examples of vague and soft obligations in other important MEAs such as on climate change as well as on biological diversity. They indicate exhortatory statements, such as ‘shall develop’ or ‘shall adopt,’62 or fully discretionary implementation, such ‘as far as possible’ and ‘as appropriate.’63 The familiar pattern of phraseology used is akin to the conventions on ozone layer depletion and transboundary movements of hazardous wastes. The nature of the issue, the lack of full scientific evidence, the circumstances of adoption, the economic stakes, political convenience and the reluctance of states to go for hard measures immediately account for the use of such soft language in a hard legal instrument. The variations are decided by exigencies of the situation and peculiar nature of the sectoral environmental issue at stake. Thus, soft law provisions play an important role in the formation of a normative process in international law, in general, and in international environmental law, in particular. The relative hardness or softness of norms will need to be judged from the specific context and the content rather than the form in which they are encased. They have emerged as an important tool and make an important normative contribution to the process of crystallizing emerging international regulatory process on a given subject. As a corollary, they could help in securing a MEA with a much harder edge later on (avoiding hold-out problems by securing the participation of as many states as possible). Even if the soft law does not get hardened in due course, it becomes a reference mark or a threshold to judge and guide states’ environmental behaviour. It has a creeping, but subtle, influence upon state behaviour. In a way it reflects realities of the complex world driven by unending human needs that have triggered simmering global environmental crisis. As noted in the 1980 World Conservation Strategy, ‘[a]lthough soft law is unenforceable it is of great value because it provides a set of generally agreed standards of international behaviour and paves the way for the codification of such standards in a more binding form.’64 In fact, the usage of the term ‘soft’ conceals its practical role as well as its utility in the law-making

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process. As such, the mere designation of softness does not diminish the role of such norms in the law-making process. The underlying assumption for soft legal instruments is the expectation that states voting in favour of a resolution or adopting it at a multilateral conference will ‘gradually conform their conduct to its requirements.’65 It remains a moot point as to what extent the sheer ‘multiplying’ of soft law norms propels states to comply with them.66 It certainly may not constitute an estoppel in favour of soft law norms, yet considerable political and moral pressures are attached to them. It is rather difficult to draw a clear demarcation line between what is ‘pre-legal and the legal.’67 However, both hard law and soft law play their own roles at their own pace in the development of international environmental law. The growing proliferation of soft law norms in recent years is only indicative of the complexities of the issues and realities of international life. In view of the frequent resort to soft law norms for environmental issues, they may be considered as the delicate ‘thin end of the normative wedge’ of international environmental law.68 Since the evolution of international law is a continuing process, it requires a ‘wide range of modalities,’69 and soft law tools are just one of them, howsoever incongruent they might appear for the law proper. The best way to measure the softness of soft law is the attitude and actual behaviour of states. The more preferred course, however, needs to be to focus upon the sliding scale between soft law and hard law. In actual practice, though, the thin dividing line often gets blurred. 6. Fulcrum for Law-Making In recent decades, the international environmental law-making process has witnessed a rate of growth that is faster than other areas of international law such as human rights and international economic issues. The advent of concerted efforts to diagnose global environmental problems, within multilateral frameworks, has created conducive conditions for this purpose. Prior to the 1972 Stockholm Conference, environmental problems were generally addressed either within bilateral or regional frameworks. The Stockholm Conference brought to the fore inter-linkages of the global environmental problems across the world and, in some cases, the need to address them within a global framework.

Some of the shared common natural resources such as international rivers and lakes first entered the agenda. In these agreements, however, the protection of waters against pollution was only one of the goals. Similarly, migratory species of birds, wildlife and heritage also became subjects of regulatory frameworks. Several environmental catastrophes like mercury poisoning of fish stocks in Japan or oil pollution resulting from 1967 Torrey Canyon tanker disaster contributed in no less measure to international concerns calling for regulatory frameworks as well as liability and compensation in such cases. These events did start making inroads into the cherished domain of state sovereignty. The dawning of an era of multilateral environmental cooperation necessitated the participation in some aspects of sovereign jurisdiction, as the states would need to give effect to the decisions of those regulatory frameworks within their domestic sphere. Similarly, a gradual focus upon some of the global commons has also brought to the fore the need for common efforts to address them. This has particularly taken shape in the case of Antarctica, outer space, law of the sea, and, more recently, the atmosphere. The evolution of the notion of the ‘common heritage of mankind,’ especially during the third UN Conference on the Law of the Sea (in 1973–82),70 provided a basis for the preservation of those common areas in as pristine a form as possible. A series of developments have cumulatively contributed to new avenues in the legal field such as ‘deep seabed genetic resources beyond the limits of national jurisdiction’71 that makes institutionalized international environmental cooperation inevitable. This development has sought to pick up the threads of incomplete agenda concerning the ‘area’ (Part XI) under the UNCLOS. The UNGA resolution 72/24972 of 24 December 2017 decided to convene an international conference to elaborate the text of an international legally binding instrument under the UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. This ambitious process has already undergone three sessions during September 2018 to August 2019 and the fourth session was slated to take place in first half of 2020.73 In view of situation arising from Covid-19 pandemic in 2020, the General Assembly resolution 75/239 (30 December 2020) has now mandated convening of the fourth session of the Intergovernmental

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Conference in New York during 16 to 27 August 2021. The emergence of international law as a guardian of the global environment and the commons also reflects the capacity of international law to adapt and change with the new challenges and changing requirements of the international society. The changing character of international law for the protection of the environment underscores the embedded tension in the regulatory process even as the state of the global environment is a growing cause of concern. The advent of the Anthropocene epoch affirms this human predicament, which was forewarned by the 1972 Club of Rome report.74 This process, as discussed earlier, has experienced various phases in the evolution of a distinct branch of international environmental law. Amidst various scattered and piecemeal efforts in this direction, the growing trend of ‘centralization’ in law-making on environmental issues is most discernible. Interestingly, soft law instruments, which have been described as the ‘trojan horse of the ecologists’ 75 have played ¨ (trojanische Pferd der Okologistern), a pivotal role in the growing legalization of global environmental protection. The 1972 Stockholm Conference may be said to have set the ball rolling for multilateralism on global environmental issues. The inherent logic in the centralized international law-making on environmental issues appears to be the argument that many of them necessitate a global, as distinguished from international, framework. The process of centralized legalisation has taken various forms. Unlike the development of traditional international law, the pace of law-making in this sphere has been relatively faster. Furthermore, it is more in the direction of ‘conventional’ (treaty) law than customary law. Interestingly, most of the international legal developments in the field of environment protection have taken place outside the precincts of the UN’s ILC,76 which was assigned the task of the progressive development and codification of international law. In the absence of a central law-making institution in the environmental field, this task has generally fallen upon the UNGA. The UNGA has in fact played a crucial role in terms of convening global conferences that, in turn, have contributed significantly to centralized law-making. The 1972 Stockholm Conference was followed by other major global conferences; the 1992 Rio Conference as well as the 2002 World Summit on Sustainable Development (WSSD) in Johannesburg and the Rio + 20 UN Conference of Sustainable

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Development in 2012 have been major milestones in this respect. It remains to be seen as to what does the UNGA sets up as a target (both political and legal) for the next milestone of 2022 – fiftieth anniversary of the 1972 Stockholm Conference. The Stockholm Conference did not produce any international legal instruments, yet the Stockholm Declaration has played an important role in the internationalization of environmental issues.77 In fact, Principle 21 of the Stockholm Declaration is now widely understood to have become part of customary international law. The Rio Conference, as explained earlier, was very productive in terms of contributing two international conventions—one on climate change and another on biological diversity—as well as three other soft instruments on the Rio Declaration, Agenda 21, and the Forestry Principles.78 The UNGA again convened a Special Session (nineteenth) on the Earth Summit plus Five (1997),79 to take stock of the follow-up to the implementation of Agenda 21. The 2002 WSSD became another milestone in the technique of global conferencing.80 However, the Rio + 20 Summit produced a landmark document, The Future We Want,81 which became a precursor to the advent of the Sustainable Development Goals82 and took stock of the sincerity of the commitments of states for environmental protection and sustainable development. Apart from the global conferencing on environmental issues, the UNGA has also from time to time played a catalytic role in launching a process for global regulatory frameworks such as climate change (1992 UNFCCC) and biological diversity (1992 CBD). In the specific case of the climate change issue, the UNGA adopted a resolution that declared that climate change is a ‘common concern of mankind’ and that ‘necessary and timely action should be taken to deal with climate change within a global framework.’83 Subsequent marathon climate change regulatory process84 has taken the shape of 1992 UN Framework Convention on Climate Change (UNFCCC) as well as 1997 Kyoto Climate Protocol and the 2015 Paris Agreement. In fact UNFCCC is one of the two global conventions (other being the 1994 UN Convention to Combat Desertification) that carry the prefix ‘UN’. It is directly serviced by the UN as the host. As a subsidiary organ of the UNGA, UNEP has played an important role in galvanizing the international law-making process. The constituent instrument of UNEP has mandated that it ‘promote

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international co-operation in the field of the environment and to recommend, as appropriate, policies to this end.’85 A familiar device employed by UNEP for this purpose is the constitution of an ad hoc Group of Legal and Technical Experts, which has come out with a set of recommendations as well as the preparation of drafts for adoption by the UNEP Governing Council, which has been re-designated in 2014 as the UN Environment Assembly with universal membership.86 Through this technique, it has set in motion a number of soft law guidelines, principles, decisions, and recommendations, which provide a rich source for the further development of law in these respective areas. In turn, they have sometimes taken the shape of a global environmental agreement (for example, the 1989 Basel Convention).87 Some other notable agencies, within the UN system, that have played roles in this context include the FAO, the WHO, UNESCO, the IMO, and the WMO. The intergovernmental and non-governmental institutions outside the UN system that have contributed to the process include the International Union for the Conservation of Nature (IUCN), the World-Wide Fund for Nature (WWF), the International Law Association (ILA), and the Institute of International Law (IIL). The premise that some of the global environmental problems need global solutions has brought about change in the perception on these issues as common concerns of mankind. The efforts by Malta,88 however, to have the UNGA declare the conservation of climate as the common heritage of mankind did not succeed.89 The UNGA instead recognized the issue of climate change as a common concern of mankind. The echo of this salutary declaratory statement came to be reflected in two global conventions on climate change90 and on biological diversity,91 which were adopted at the 1992 Rio Earth Summit. In a sense, the notion of common concern caters to the requirements of the international community interest in a common resource as opposed to limited national interest. It lays down the prima facie basis for common action for a regulatory framework on those issues, which cannot be addressed in a bilateral context or by a limited number of states. As Alexandre Kiss has observed, [i]n principle, the proclamation that safeguarding the global environment or one of its components is a matter of common concern

for the whole of mankind would mean that it can no longer be considered as solely within the domestic jurisdiction of States, due to its global importance and consequences for all. . . the States, under the jurisdiction of which environmental components are to be found and the conservation of which constitutes a common concern of mankind, should be considered as trustees charged with their conservation.92 It appears that the negotiators now consciously avoid the term ‘common heritage,’ which incidentally came to be applied with reference to the exploitation of the resources of the deep seabed. The idea of regarding a resource as a common heritage implies the duty of care to preserve it for future generations. Common concern can be regarded as forming part of the common heritage. An explicit reference to the term ‘common heritage’ appears to have been avoided as it ran into controversy in the case of the UNCLOS.93 Following the 1994 Agreement for the Implementation of Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, the Area (Part XI of UNCLOS on common heritage of mankind) was explicitly targeted.94 Hence, it lost the original purpose, content, and the sheen of the ideal that had galvanized the world when Arvid Pardo (from Malta) first mooted it before the UNGA on 1 November 1967.95 Interestingly, the subtle change in emphasis from common ‘heritage,’ to common ‘interest,’ to common ‘concern’ at various stages appears to have been made to accommodate conflicting interests of the negotiating states. However, it does underscore the nature of the issues that states were intending to deal with, the need for approaches beyond the confines of national or bilateral domains, as well as the conflicting demands it places on various international actors. The common concerns are to be addressed within a multilateral framework, on the basis of common, but differentiated, responsibility, on the part of the contracting states to a global convention (such as the UNFCCC).96 The advent and usage of this new phrase in the legal parlance has wide ramifications both in terms of the centralization of environmental law-making as well as multilateral environmental negotiations. As a corollary to it, issues of ethics and equity hold the key to some of the common concerns being grappled with at the global level. It remains to be

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seen if this is replicated in addressing the simmering challenge of plastics pollution as a ‘new common concern of humankind’.97 7. New Treaty Making A sense of urgency is generally inherent in most multilateral environmental negotiations. Unlike in traditional international law-making, states cannot now afford the luxury of waiting for the emergence of a hardened customary norm through the practice of states. Instead, the soft law norms are often adopted as an instant guideline for regulating the behaviour of sovereign states. Interestingly, even this soft law becomes in many cases just a prelude to the formulation of hard law in the form of a MEA, irrespective of the nomenclature used for the purpose. As mentioned earlier, the rapidity of the norm-setting process, due to the urgency of addressing a specific environmental issue amidst scientific uncertainty, does not leave much room for states to allow soft norms to harden. Therefore, one can often smell the flavour of these soft norms couched even in the hard shell of an agreement. However, this peculiar characteristic, normatively, does not pose much of a problem since it suits most states. Often the adoption of a MEA, with a ‘soft belly’ of obligations, becomes a stopgap that allows breathing space for the normativity to harden alongside the emergence of consensus for the evolution of a particular regime. In recent years, states have preferred to go for the legal soft law that is contained in many of the MEAs. For a variety of reasons, such MEAs require the formation of a subsequent legal instrument to bring original objectives to fruition by the requirement of further action on the part of the states parties. This has been described as the framework convention–protocol approach in law-making. The factors that contribute to states’ inclination to follow this approach are complex. Multilateral treaty making is a painstaking process, especially when an overwhelming number of states (often all the 193 UN members) are participating in it. In the past, the efforts of negotiating states to go for an all-comprehensive approach, comprising threadbare discussions, giving finality to all of the issues on the agenda of negotiations, and providing concrete obligations for the parties and a dispute settlement mechanism, have proven to be a time-consuming process. They do not envisage the

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use of calculated ambiguity and built-in law-making exercise. In view of the very nature of the environmental issues, states prefer to go for exhortatory and/or discretionary language in such agreements. At the same time, they prefer some scientific certainty before accepting concrete obligations. This is especially so as the legally binding obligations would entail some painful measures by states at the domestic level, which have the potential to unleash bitter political and economic implications. In going for a skeletal form of a MEA, states seek to grapple with scientific uncertainty on the issue in question, avoid taking hard decisions in the short term, try to take as many states as possible on board, minimize hold-out problems, and yet have a legal regime that brings accolades for the signatory states (keeping an eye on domestic public opinion). Often the psychological pressure is so much that hardly any of the negotiating states prefer to be seen on the wrong side of the regulatory effort and, hence, prefer to be part of the resultant consensus. As the rationale for this approach goes, the contracting states just lay down broad policy outlines through the device of the framework convention and leave nettlesome details to be worked out in the protocols that may be negotiated at a later date. The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) was one of the earliest examples of this approach.98 In fact, CITES contained endangered species listed in three appendices,99 which the parties could review from time to time. A species’ name could be put in a particular annex depending upon its endangered status. This has proved to be a flexible form of built-in law-making for the parties, though each amendment to the lists needs to be accepted by the states for its entry into force. The UN Economic Commission for Europe’s (ECE) Convention on Long Range Transboundary Air Pollution (LRTAP Convention)100 is another example of this approach. The LRTAP regime in fact comprises separate protocols designed for different long-range transboundary pollutants.101 Thus, in terms of substance as well as precise timetables, the LRTAP Convention has shown remarkable flexibility and built-in law making. The Convention on Migratory Species of Wild Animals (CMS) also follows this genre of treaties containing flexibility and adjustment of the regime though a ‘list of species’ (in the concerned appendix)102 as

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well as providing an umbrella for the development of ‘agreements’ on specific species.103 Such framework conventions play an important role in setting in motion a normative process, through an exhortatory agreement, which is sought to evolve in due course. The process of enshrining precise legal obligations as well as a time frame for carrying them out is conditioned by the political will (coupled with economic considerations) on the part of the states. Curiously, various international actors, including civil society, play influential roles in goading states towards further regulatory measures. MEAs have generally followed the devices of protocols or agreements to strengthen the main framework conventions. Often the appendices to the convention also serve the purpose of a protocol (as in the cases of CITES and the CMS). The climate change regime has followed this familiar trajectory of the 1992 UNFCCC and two subsequent instruments: the 1997 Kyoto Protocol and the 2015 Paris Agreement.104 Such protocols or agreements stand on their own feet as they are independent multilateral instruments that require a separate set of signatures and ratifications. In fact, states having powerful economic stakes can often hold out and block the process of a protocol’s entry into force. In spite of the flexibility and adaptability of this approach, doubts persist in regard to its utility, especially since it also takes a long time for the framework convention as well as its protocols to enter into force. Several powerful states, whose economic interests are to be affected, have tried to reduce the lowest common denominator to the barest minimum. Even for the negotiation and acceptance of the protocols, they are often marred by foot dragging and long delays. Such holdouts by powerful states can often effectively cripple the protocol as well as raise the abatement costs.105 8. Conclusion The experience of the past fifty years shows that international environmental law-making process is essentially a product of a complex set of factors. Both state and non-state actors have contributed significantly to the process. It brings to the fore a whole set of tools and techniques put forward by various states that are employed in the wake of intense negotiations in inter-governmental meetings. If one can take an aerial view of the fascinating

law-making process in recent decades, it reveals an interesting pattern at work, especially within each cluster of environmental issues. A closer look would also show that it has taken the shape of a piece of fine art and craft that weaves a fabric according to the political compulsions and convenience of the sovereign states even as it takes into account scientific evidence as well as requirements of commitments in a legal or non-legally binding instrument. In fact, the states that finally adopt instruments try to grapple with a variety of legal responses to an environmental problem. The role of civil society appears to be gaining ground both at the stage of multilateral environmental negotiations as well as influencing the attitude of the states at the subsequent stage of signature and ratification. This is underscored by an unprecedented participation in the conferences of the parties (COPs).106 Since they appeal to domestic public opinion, such pressure and lobbying by the civil society is not easy to ignore. Currently, most multilateral negotiations as well as some international environmental institutions have civil society groups as observers that enable them to perform the role of a watchdog. In the absence of a central law-making institution, the initiative for an international environmental instrument, generally, comes from a specialized environmental institution such as UNEP that will act as a catalyst, either on its own accord or in conjunction with another international institution, to initiate intergovernmental negotiations. In other cases, functional international organizations of the UN system have taken the initiative (for example, the FAO or UNESCO) in matters that are closely related to their functional jurisdiction. However, it is the UNGA that occupies an important place—as the conductor of a grand orchestra—in providing decisive impetus to the norm-setting and treaty-making process as well as to overall political guidance for the entire process. A closer analysis of the range, scope, and depth of resolutions of the UNGA provides a spectacular view of the entire law-making process to a perceptive connoisseur of the field of international environmental law. On many occasions, hortatory resolutions of the UNGA have been adopted by participating states without a vote. Though no precise legal value may be deciphered by this factor alone, such resolutions adopted by the plenary organ of the United Nations do convey powerful moral authority, which most states would not prefer to ignore or defy openly.

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These resolutions, couched in familiar UN language, do carry their own force in regard to influencing the conduct of states in cases such as the Sustainable Development Goals (SDGs)107 for attaining targets in 17 areas by 2030. Many states do follow up on these resolutions with appropriate domestic action. They also help to build consensus in terms of the seriousness of the challenge (for example, common concerns) as well as the need for requisite global action. The UNGA itself sometimes sets up intergovernmental negotiating committees either to draft a MEA or to assign the task of laying the groundwork to some intergovernmental forum. Initiatives taken by the UNGA on the work assigned to the UN Forum on Forests108 on the forest issue provides an example of this approach. In sum, the concerted environmental law-making process offers a veritable tapestry of steps, initiated by different agencies and participated in by both state as well as non-state actors, and works on the basis of the ‘lowest common denominator’ to arrive at consensual outcome. Ironically, the process is ad hoc and piecemeal. This is generally understood to be the result of a lack of a single, central specialized institution having expertise on the subject, scientific uncertainty on many environmental issues, and the hard-headed economic interests of sovereign states. The mega international environmental law-making process with its inherent resilience is able to adapt to the vagaries of scientific assessments and the political realities of the world. One only hopes that, amidst the perplexity of the rapidly changing world, it will be able to provide a robust instrumentality on the road to stockholm+50 (2022) and beyond for sovereign states to effectively address and provide workable legal solutions for the simmering global environmental challenges of the twenty-first century.

Endnotes 1

Statute of the International Court of Justice, 1945, 1 UNTS 993, Art 38 (1) provides as follows: ‘The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.’ See

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United Nations (UN), Charter of the United Nations and Statute of the International Court of Justice (New York: UN, 1997) at 86. 2 Vienna Convention on Diplomatic Relations, 1961, 500 UNTS 95 (VCDR). It came into force on 24 April 1964. It has 192 states parties; available at: https://treaties.un.org/doc/ Treaties/1964/06/19640624%2002-10%20AM/Ch III 3p.pdf (accessed on 12 January 2021). 3 Vienna Convention on the Law of Treaties, 1969, 1155 UNTS 331 (VCLT). It has 116 states parties; see; available at: https://treaties.un.org/doc/publication/unts/volume%201155/ volume-1155-i-18232-english.pdf (accessed on 12 January 2021). 4 The Anthropocene Working Group at its meeting on 21 May 2019 decided to accept the unmistakable imprint of human activities on the planet Earth and recognized ‘Anthropocene’ as the new geological epoch. See Bharat H Desai, ‘How India Fares in Fighting Pollution,’ The Tribune (6 June 2019); see also ‘The Age of the Humans: Living in the Anthropocene’; available at: https://www.smithsonianmag.com/science-nature/what-is-theanthropocene-and-are-we-in-it-164801414/ (accessed on 12 January 2021). 5 These international environmental institutions mainly comprise ‘specialized agencies’ of the UN, specialized environmental institutions, regime-based institutions, and multilateral development banks. 6 An estimated 500 international conventions related to the environment have been arrived at since 1868. Out of these, almost 300 have been negotiated since the 1972 UN Conference on Human Environment. Multilateral environment agreements (MEAs) can be generally put in three categories: (i) core environmental conventions and related agreements of global significance, which have been closely associated with the United Nations Environment Programme (UNEP) (in terms of initiative for negotiation, development, and/or activities); (ii) global conventions relevant to the environment, including regional conventions of global significance, which have been negotiated independently of UNEP; and (iii) other MEAs, which are restricted by scope and geographical range. For further details on MEAs, see UNEP, International Environmental Governance: Multilateral Environmental Agreements, UN Doc UNEP/IGM/ 1/INF/1 (30 March 2001) at 3–4. Also see Bharat H Desai, Multilateral Environmental Agreements: Legal Status of the Secretariats (New York: Cambridge University Press, 2010). 7 Harvard Law Review, ‘Developments in the Law: International Environmental Law’ (May 1991) 104(7) Harvard Law Review 1484-1639 at 1521; available at: DOI: 10.2307/1341598; available at: https://www.jstor.org/stable/ 1341598 (accessed on 12 January 2021). 8 United Nations University (UNU), Inter-Linkages: Synergies and Coordination between Multilateral Environmental Agreements (Tokyo: UNU, 1999) at 5, 8. 9 See Nicholas A Robinson, Agenda 21: Earth’s Action Plan, IUCN Environmental Policy and Law Paper no 27 (New York: Oceana, 1993) at xiv. 10 Remarks by Tommy TB Koh, president of the third UN Conference on the Law of the Sea, Montego Bay, Jamaica, 10 December 1982; see UN, UN Convention on the Law of the Sea (New York: UN, 1983) at xxxiii. 11 Arnold D McNair, ‘The Functions and Differing Legal Character of Treaties’ (1930) 11 BYIL 100. 12 See VCLT, see note 3, Preamble.

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B.H. Desai / International Environmental Law-Making 13

Richard Elliot Benedick, ‘Perspectives of a Negotiation Practitioner’ in Gunnar Sj¨ostedt, ed, International Environmental Negotiation (Newbury Park: Sage Publications, 1993) 229 (emphasis in original). 14 RE Kim, ‘The Emergent Network Structure of the Multilateral Environmental Agreement System’ (2013) 23(5) Global Environmental Change 980. 15 Paris Agreement, Decision 1/CP.21, Annex, UN Doc FCCC/CP/2015/10/Add.1 (29 January 2016). It was adopted at twenty-first Conference of the Parties (COP-21) to the United Nations Framework Convention on Climate Change, 1992, 1771 UNTS 107 (UNFCCC), on 12 December 2015 and entered into force on 4 November 2016. Out of total 197 signatory states, 180 have ratified it; available at: https://unfccc.int/sites/default/files/ english paris agreement.pdf (accessed on 12 January 2021). 16 For instance, the refusal of the Unites States to ratify the Kyoto Protocol to the United Nations Framework Convention on Climate Change, 1998, 37 ILM 32 (1998) (Kyoto Protocol), is a classical illustration of the vital national interests dictating state behaviour even on an issue regarded as a ‘common concern of humankind.’ Interestingly, the United States not only refused to ratify the Kyoto Protocol but also took an unprecedented step of ‘designing’ the protocol. The United States, being the largest emitter of greenhouse gases, has effectively engaged in a ‘hold out’ and derailed the protocol from coming into force. The Kyoto Protocol has been ratified by 110 states (as compared to the fifty-five ratifications required). Still the second part of the ratification process is not attained as the protocol has been so far ratified only by states contributing 43.9 percent of the greenhouse gas emissions (as compared to the 55 percent required); available at: http://www.unfcccc.int (accessed on 12 January 2021). 17 Edith Brown Weiss, ‘The Five International Treaties: A Living History’ in Edith Brown Weiss and Harold K Jacobson, eds, Engaging Countries: Strengthening Compliance with International Environmental Accords (Cambridge, MA: MIT Press, 1998) 89. 18 For a detailed exposition on this idea, see Bharat H Desai, International Environmental Governance: Towards UNEPO (Boston: Brill Nijhoff, 2014); see also Peter H Sand, Lessons Learned in Global Environmental Governance (Washington, DC: World Resources Institute, 1990) at 1–60; Peter M Haas, ‘Global Environmental Governance’ in Commission on Global Governance, Issues in Global Governance (London: Kluwer International, 1995) 333; Peter M Haas and Ernst B Haas, ‘Learning to Learn: Some Thoughts on Improving International Governance of the Global Problematique’ in Commission on Global Governance, Issues in Global Governance (London: Kluwer International, 1995) 295; Hilary French, Vanishing Borders: Protecting the Planet in the Age of Globalization (New York: WW Norton & Company, 2000) 144. 19 For a detailed exposition on MEAs, see generally Bharat H Desai, Multilateral Environmental Agreements: Legal Status of the Secretariats (New York: Cambridge University Press, 2010; paperback 2013). 20 For instance, COP-24 to the UNFCCC, supra note 15, took place in Katowice, Poland, although it was originally scheduled for 2–14 December 2018 and was extended by a day to enable the parties to reach agreement to finalize the rules for the implementation of the Paris Agreement on climate change under the Paris Agreement’s work program. See Earth Negotiations Bulletin, vol. 12(747) (18 December 2018); available at:

http://enb.iisd.org/download/pdf/enb12747e.pdf (accessed on 12 January 2021) . 21 International Status of South-West Africa, Advisory Opinion, [1950] ICJ Rep 128 at 140. 22 The Katowice Climate Package that was finally adopted at an extended session on 15 December 2018 reflects several loose ends as well as ambiguities to keep the process on track and deliver the rule book for the 2015 Paris Agreement and, in turn, its final operationalization in 2020. Earth Negotiations Bulletin, supra note 20. In this context, Oscar Schachter has also given an example of the intention of the parties in cases of the political agreements among big powers at Cairo, Yalta, and Potsdam, immediately prior to the United Nations Conference on International Organization in San Francisco in 1945. According to him, there was a calculated ambiguity about the obligatory force of these instruments particularly regarding some of their provisions. The respective governments, party to those agreements, treated them as ‘simply a statement of common purposes by the heads of the participating governments and ... not as of any legal effect in transferring territories.’ See Oscar Schachter, ‘The Twilight Existence of Nonbinding International Agreements’ (1977) 71 AJIL 297, n. 11. 23 Geoffrey Palmer, ‘New Ways to Make International Environmental Law’ (1992) 86(2) AJIL 259 at 269. 24 Bharat H Desai et al, Implementation of the Convention on Biological Diversity: A Retrospective Analysis in the Hindu Kush-Himalayan Countries (Kathmandu: International Centre for Integrated Mountain Development, 2011) at 3; see also Convention on Biological Diversity, 1992, 1760 UNTS 79, Arts 5, 12, 14; available at: https://www.google.com/search?client= firefox-b&q=download+1992+Convention+on+Biological+ Diversity (accessed on 12 January 2021) (CBD). 25 RR Baxter, ‘International Law in Her Infinite Variety’ (1980) 29 ICLQ 549. 26 Prosper Weil, ‘Towards Relative Normativity in International Law?’ (1983) 77 AJIL 414. 27 Patricia Birnie, ‘International Environmental Law: Its Adequacy for Present and Future Needs’ in Andrew Hurrell and Benedict Kingsbury, eds, The International Politics of the Environment: Actors, Interests and Institutions (Oxford: Clarendon Press, 1992) 53. 28 See remarks by Gunther F Handl, chair at the panel discussion. Gunther F Handl, ‘A Hard Look at Soft Law’ (1988) 82 ASIL Proceedings 371 at 371. 29 The United Nations General Assembly (UNGA) has adopted Resolution 72/277 on Towards a Global Pact for the Environment (10 May 2018); available at: http://undocs.org/ A/RES/72/277 (accessed on 12 January 2021). As a sequel to this, the UN secretary general presented a report to the UNGA on 30 November 2018 to trigger the process for an ad-hoc open-ended working group that has been mandated to ‘consider the report and discuss possible options to address possible gaps in international environmental law and environment-related instruments, as appropriate, and, if deemed necessary, the scope, parameters and feasibility of an international instrument, with a view to making recommendations, which may include the convening of an intergovernmental conference to adopt an international instrument, to the Assembly during the first half of 2019.’ 30 For the three rounds of the Nairobi Process held during January to June 2019 including deliberations, draft elements of the Co-chair’s ‘non-paper’ and the outcome, see; available at:

B.H. Desai / International Environmental Law-Making https://www.unenvironment.org/events/conference/towardsglobal-pact-environment (accessed on 12 January 2021) . Also see the UNGA Resolution 73/233 on ‘Follow-up to the report of the ad hoc open-ended working group established pursuant to General Assembly resolution 72/277’(30 August 2019); available at: https://undocs.org/en/A/RES/73/333 (accessed on 12 January 2021). 31 Bharat H. Desai, ‘UN General Assembly as the ‘Conductor of a Grand Orchestra’ in the Discourse on Global Perspectives on a Global Pact for the Environment (19 September 2018), Columbia Center on Sustainable Investment, Columbia University, New York; available at: http://ccsi.columbia.edu/ 2018/09/19/global-perspectives-on-a-global-pact-for-theenvironment/ (accessed on 12 January 2021). 32 Bharat H Desai and Balraj K Sidhu, ‘Climate Change as a Common Concern of Humankind: Some Reflections on International Law-making Process’ (Chapter 10) in Jordi Jaria Manzano and Susana Borr`as (ed.), Research Handbook on Global Climate Constitutionalism (London: Edward Elgar, 2019). Also see Balraj K Sidhu and Bharat H Desai, ‘Plastics Pollution: A New Common Concern of Humankind?’ (2018) 48(5) Environmental Policy and Law 252. 33 On this issue, see generally Louis Henkin, How Nations Behave: Law and Foreign Policy (London: Pall Mall for the Council on Foreign Relations, 1968); see also Jose E Alvarez, ‘Why Nations Behave’ (1998) 19 Michigan J Intl L 303; available at: http://repository.law.umich.edu/mjil/vol19/iss2/1 (accessed on 12 January 2021). 34 See Charter of the United Nations, 1 UNTS 16 (1945) arts 10, 12 use the formulation that the UNGA ‘may make recommendations.’ 35 For instance, Ignaz Seidl-Hohenveldern has argued that following the adoption of the Universal Declaration of Human Rights, UN Doc A/810 (10 December 1948) (Universal Declaration), the UN and its organs could no longer practice any policy that may run counter to the principles enunciated in the Universal Declaration. For example, there cannot be different wages for equal work by male and female employees of the UN. See Ignaz Seidl-Hohenveldern, ‘International Economic Soft Law’ (1979) 163(2) Recueil des Cours 195. 36 UNEP Governing Council has adopted a series of guidelines in specific areas, which may have invested them with a soft law character. These guidelines include the Cairo Guidelines and Principles for the Environmentally Sound Management of Hazardous Wastes, Doc UNEP(092)/E5 (17 June 1987); available at: https://www.informea.org/en/cairo-guidelines-and-principlesenvironmentally-sound-management-hazardous-wastes (accessed on 12 January 2021); the Exchange of Information on Chemicals in Trade, 1987 with Amendment for Prior Informed Consent Procedure, 1989; available at; https://www.jus.uio.no/lm/unep. chemicals.information.exchange.trade.london.guidelines.1989/ landscape.pdf (accessed on 12 January 2021); the Goals and Principles of Environmental Impact Assessment, 1987; available at: https://www.soas.ac.uk/cedep-demos/000 P514 IEL K3736Demo/treaties/media/1987%20UNEP%20Goals%20and%20 Principles%20of%20Environmental%20Impact%20Assessment. pdf (accessed on 12 January 2021); the Protection of the Marine Environment against Pollution from Land-Based Sources, 1985, the Protection of the Marine Environment against Pollution from Land-Based Sources, 1985; the Conclusions of the Study of Legal Aspects Concerning the Environment Relating to Offshore Mining and Drilling within the Limits of National Jurisdiction,

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1982; available at: https://digitallibrary.un.org/record/42519 (accessed on 12 January 2021); Provisions for Co-operation between States in Weather Modification, 1980; available at: https://digitallibrary.un.org/record/42518 (accessed on 12 January 2021); and Principles of Conduct in the Field of the Environment for the Guidance of States in the Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States, 1978; available at: https://digitallibrary.un.org/ record/41332?ln=en (accessed on 12 January 2021); see Bharat H Desai, ‘Regulating Transboundary Movements of Hazardous Wastes’ (1997) 37(1) Indian Journal of International Law 47, n 22. 37 Cairo Guidelines, supra note 34; Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 1989, 1673 UNTS 126 (Basel Convention). 38 The Programme for the Development and Periodic Review of Environmental Law (Montevideo Programme) is a ten-year action plan that aims at catalyzing progressive development of environmental law. On 28 November 2018, a first draft of the Montevideo Program V was released as Delivering for People and the Planet: Fifth Montevideo Programme for the Development and Periodic Review of Environmental Law (Montevideo V); available at: http://wedocs.unep.org/handle/ 20.500.11822/26801?show=full (accessed on 12 January 2021). It is a proposal for the work by UNEP in the area of environmental law for a specific period beginning in 2020 39 The mandate of UNEP’s Governing Council speaks, among others, of promoting ‘international co-operation in the field of the environment and to recommend, as appropriate, policies to this end.’ This may be construed as conferring a broad mandate to UNEP’s Governing Council to embark upon an ambitious exercise for various guidelines, principles, and recommendations adopted over the years. In fact, they formed on a number of occasions the basis for the development of international agreements on concerned subjects. See UNGA Resolution 2997(XXVII) on Institutional and Financial Arrangements for International Environmental Co-operation (15 December 1972) at 43, Part I, para 2(a). 40 Universal Declaration, see note 33. 41 UNGA Resolution 3201 (S-VI) on the ‘Declaration on the Establishment of a New International Economic Order’ was adopted without a vote on 1 May 1974; available at: https:// digitallibrary.un.org/record/218450 (accessed on 12 January 2021). 42 Charter of Economic Rights and Duties of States, 1974, 14 ILM 251 (1975). UNGA Resolution < 3281 (XXIX) of 12 December 1974> on the Charter of Economic Rights and Duties of States was adopted without a vote on the report of the Second Committee; available at: https://www.un.org/ga/search/view doc. asp?symbol=a/res/3281 (accessed on 12 January 201). 43 Stockholm Declaration on the Human Environment, 1972, 11 ILM 1416 (1972). 44 World Charter for Nature, Doc.A/RES/43/53 (27 January 1989). UNGA Resolution 43/53 on Protection of Global Climate for Present and Future Generations of Mankind (1988) was adopted without a vote on 6 December 1988. 45 UNGA Resolution 43/53, ibid. Also see Patricia W Birnie and Alan Boyle, Basic Documents on International Law and the Environment (Oxford: Clarendon Press, 1995) at 248–51. 46 Rio Declaration on Environment and Development, 1992, 31 ILM 874 (1992).

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See note, 29 and 30. It has been argued by Gunther Handl that one of the theoretical challenges, posed by the soft law phenomenon, lies in ‘appreciating fully the declining reliability of formal criteria of international law as guideposts to what actually constitutes international law. Past warnings about mistaking those legal phenomena that masquerade as international law because they fit the formal categories of law as enumerated, for example, in article 38 of the Statute of the International Court of Justice, are more appropriate than ever.’ See Handl, see note 28. 49 See remarks by W Michael Reisman in Handl, see note 28 at 374. 50 Ibid, at 376. 51 VCLT, supra note 3, art 2; see also UN Doc no.A/Conf.39/27 (1969)