Ebook: Envisioning Our Environmental Future

Time is of the essence; it waits for no one. After half a century, the historic ‘Stockholm Moment’ arrived on 2–3 June 2022. It seems like only yesterday that the 1972 United Nations Conference on the Human Environment (UNCHE) took place in the Swedish capital of Stockholm, so this was a poignant moment. After a long generational hiatus, the world once again assembled in Stockholm to reflect upon time passed and the time we live in, and ponder on the rapidly depleting time we have left for remedial action to safeguard our future amid warnings of impending environmental catastrophe. Time has eventually taught us how much the Earth matters for the survival of all forms of life.

The question looming over the Stockholm gathering was: what went wrong? The address by the UN Secretary-General Antonio Guterres reflected signs of helplessness and grave concern as he told us that global “wellbeing is at risk...Earth’s natural systems cannot keep up with our demands...We have not kept our promises on the environment”. He pleaded before the delegations of the UN member states for them to “lead us out of this mess”. Taking a cue from the anguish of the UNSG, Inger Andersen, executive director of the UN General Assembly’s environment program (UNEP), recalled the presence of only two heads of government – those of India and Sweden – at the 1972 Stockholm Conference and posed a question: “If Indira Gandhi or Olof Palme were here today, what excuses would we offer up for our inadequate action?” She then gave the answer herself: “They would tell us that further inaction is inexcusable”.

It was a cathartic moment for the 50-year long journey of the global environmental movement. Ironically, despite the hypothesis that “global problems need global solutions” and the deliberations of all the global conferences (1972 Stockholm; 1992 Rio de Janeiro; 2002 Johannesburg; 2012 Rio de Janeiro and 2022 Stockholm), mega regulatory processes, negotiation of the policy, legal and institutional maze and the spending of staggering amounts of money, global environmental conditions have only worsened. Has it really been worth it?

Time Standing Still

Time has almost stood still when it comes to addressing the “world problematique” prophesied in the Club of Rome’s Limits to Growth (1972). It continues to haunt humankind. In a way, the Stockholm+50 Conference remained a low-key affair. The moral halo that awoke the global environmental consciousness at Stockholm 1972 seemed to be missing at Stockholm 2022. The meeting ended with a joint statement issued by the host countries, Sweden and Kenya, as mandated by the UNGA’s enabling (75/280 of 24 May 2021) and modalities (75/326 of 10 September 2021) resolutions. Instead of a much-anticipated uplifting Stockholm+50 declaration, it took the form of a strange, ten-point “Presidents’ Final Remarks to Plenary”. Devoid of a clarion call to “arise, awake and not stop until the goal is reached”,1unmapped: fn unmapped: label ¹

उत्तिष्ठत जाग्रत प्राप्य वरान्निबोधत – Katha Upanishad, 1.3.14 chapter; Swami Vivekanand

Envisioning Our Environmental Future

In the light of these questions and the environmental problematique which continues to haunt us, it makes sense to assess the trajectory followed this far, as well as what lies ahead. How can we move forward? This was the impetus behind a process curated in Environmental Policy and Law over the course of sixteen months (2021–2022), a process which sought to engage in and present a challenge to leading thinkers to envision our environmental future at the 2022 ‘Stockholm Moment’. This has brought together the visionary ideas of 31 outstanding scholars from around the world in 22 contributions [EPL issues 51.6. 2021 (one); 52.1. 2022 (two); 52.2. 2022 (eight) and 52.3. 2022 (eleven)] which look ahead in time. It has been a modest but positive quest – within the limits of time, space, energy and resources and undaunted by the unprecedented difficulties of the Covid-19 pandemic – to find pathways to extricate the world from the global environmental morass. It is a sequel to the similar Our Earth Matters (IOS Press: Amsterdam, 2021), which put forward the cutting-edge ideas of 23 outstanding scholars.

Stockholm+50 and Beyond

The book contains all of the above mentioned 22 articles, curated in EPL. They are divided into three parts. Part I. Testing Times (Nicholas Robinson; Peter Haas; Elisabeth Dowdeswell; Karan Singh; Donald Kaniaru), provides an insight and reflects upon the fifty-year trajectory of legal and political aspects of the global environmental regulatory process, the role of one of the principal torchbearers (Indira Gandhi) and the principal instrumentality (UNEP). Part II. Global Ideas (Yann Aguila; Bharat Desai; David Hunter; Owen McIntyre; Jordi Jaria-Manzano; Klaus Bosselmann; Anna Sundström; Krishna Oli; Jonas Ebbesson), envisions global ideas for the overhaul of future approaches, legal processes and the marshalling of the potent instrumentality required to grapple with environmental challenges in the state-centric system. Finally, Part III. Sectoral Ideas (Eleanor Sharpston; Shailesh Nayak; Kirk Junker; Philippe Cullet; Chris Backes; Surya Subedi; Oliver Ruppel; Gregory Rose), seeks to probe solutions for some of the sectoral challenges. If diligently put in place, these would serve as reparative measures for course correction, as well as helping to heal some of the challenges of planetary health.

I take this opportunity to express my deep sense of gratitude to all the distinguished scholar colleagues who heeded the call and made the effort to contribute. I am touched by the way in which they have risen to the occasion, seeding futuristic ideas at this critical juncture.

Time Running Out

The ‘Stockholm Moment’ 2022 provided a unique opportunity for all the heads of government to go down in history for leading us out of the crisis of planetary survival. As the grueling spell of the Covid-19 pandemic from 2020–2022 showed us, time has its own ways of defining the limits of our existence. The Earth does not have enough for everyone’s greed, so we need to prioritize our needs. We can hope that the peoples and nations of the Earth will heed the alarm bells before our dwindling time actually runs out.

I would like to express my thanks to IOS Press colleagues Marten Stavenga and Reina Steenhuizen for their strong support for my work and for facilitating the timely publication of this book. I humbly dedicate this modest collective work to the provision of a pathway to a healthy future.

Bharat H. Desai

Editor

Earth, and its human societies, are seized with the triple crises of climate change, biodiversity loss, and pervasive and escalating levels of pollution. In the 50 years since the 1972 UN Stockholm Conference on the Human Environment (UNCHE), States and UN Environment Program (UNEP) have created an entirely new body of international environmental law, and agreed on the UN Sustainable Development Goals for further socio-economic developments to help the 7.9 billion people on Earth today, and the 1.5 more billion expected soon. The article highlights the accomplishments of the past five decades, launched in Stockholm. However, beyond depleting the resources of Earth’s natural and physical environment, humanity has also depleted time itself. There is not enough time left to permit the pace of environmental law-making to lead to success. Political will has eroded too, leaving “business as usual” to continue to harm the environment. Fortunately, most nations have recognized the right to the environment, and the UN General Assembly is asked to do so in 2022. At the same time, courts around the world are increasingly enforcing environmental rights. If courts world-wide begin to enforce the right to the environment, pathways to attaining sustainable development can be developed beyond Stockholm+50 (2022).

The global environmental awareness and regulatory process has covered a trajectory of 50 years. From the innocent times of the first 1972 UN Conference on the Human Environment (UNCHE), the world has travelled very far. It has encompassed a veritable process comprising role of actors, polarizing issues such as balancing of environment-development, emergence of norms and governance forms. In the post-Westphalian governance order, the political landscape has been a determining factor for the contemporary environmental discourse. Even as the global governance architecture has become more complex and hierarchical, what can UNCHE + 50 ordain for our environmental future? What alternatives are possible for survival of the planet earth and betterment of the humankind? This article seeks to examine some of these issues of environmental politics that will determine the future course of action at UNCHE+50 event in June 2022 and beyond.

Drawing upon personal notes and memories, this article reflects on selected moments during the journey of global environmental awareness during the past 50 years. Through its convening power the United Nations, it’s myriad programs and associated organizations, has been the foundational institution. The emergence of the concept of sustainability and the existential crisis of climate change have dramatically altered the landscape during the period. Challenging questions about the governance of global interconnectedness and an agenda of peace and security that considers social inclusion, economic prosperity and environmental stewardship holistically remain a work in progress at Stockholm+50 and beyond.

The United Nations Conference on the Human Environment (UNCHE) was held in Stockholm during 5–16 June 1972. The Indian Delegation was personally led by the late Prime Minister Indira Gandhi. As a Cabinet Minister this author was a member of it. Hence, this contribution is a personal reflection of the author. India has been an active participant in all the major global environmental conferences to protect the global environment. The 1992 Rio Conference is considered the landmark for the starting point of international environmental law-making. Still, it is the 1972 Stockholm Conference that should be considered as the pillar for the codification of international environmental law and governance. In view of this, the Stockholm +50 (2–3 June 2022) Conference was a good occasion to review the successes and failures over the last half a century and reiterate the call for all nations to co-operate fully to meet their commitments under multilateral environmental agreements including 2015 Paris Agreement. This recollection provides a glimpse, through Indira Gandhi’s vision, into the international environmental processes and the prospects for the Stockholm+50 and beyond.

Environmental issue on to the global radar screen with the first UN Conference on Human Environment (UNCHE) hosted by the Swedish Government in Stockholm during 5–16 June 1972. The momentum generated by this historic meeting was attended by only two heads of Government of Sweden and India. It took place amid skepticism about the approach, the North-South divide and the idea that global problems need global solutions. It gave birth to a new UN environment entity – UNEP – that became the first major UN entity to be located in the African continent. The UN General Assembly driven global conferencing approach has stood the test of time as witnessed in subsequent summits at Rio de Janeiro (1992), Johannesburg (2002) and Rio+20 event (2012). Now the stage is set for the 50 years of the UNCHE. The first part took place in Nairobi during 3–4 March 2022. The second part will be held in Stockholm during 2–3 June 2022. The author has been privy as well as a participant in the making of UNEP from its inception and his life became intertwined with the life of UNEP. This article seeks to provide that firsthand account along with what went wrong and what lies ahead beyond Stockhom+50 event.

The emergence of the global public interest stems from a shift in the notion of sovereignty that goes beyond the interest of a State per se. It comprises inevitability of the assertion of sovereignty in a state-centric international legal and global order. As growing numbers of international legal instruments factor in and use different nomenclatures to indicate quest to go beyond the narrow confines of ‘sovereignty’ to cater to need for co-existence with other nations and peoples, it calls for sensitivities in our pursuit for something ‘common’ on the planet earth. This article seeks to examine and contextualize the quest for a global common interest in the emerging scenario of deepening of the global environmental challenges and the need to find legal and institutional mechanisms for our survival. Can we chisel the existing tools and prioritize the common interest at the global level? What will it entail?

The idea of the revival and repurpose for the United Nations Trusteeship Council (UNTC) is pragmatic one to meet the needs of the changed times. Such repurpose entails entrustment of a new mandate to the revived UNTC that constitutes evolution of the trust in the global domain. It will be crucial restructuring and evolution of the UN with an understanding that there are places, territories, and areas known as ‘global commons’ that require special and careful nurturing for our better future. In a new avatar (form), the TC would in essence reflect the ‘sacred trust’ with a ‘new mandate.’ From a scholarly perspective, such a move eminently makes sense since it could bring to life an entity within the UN and provide a big push to make the UN relevant for the needs of the present and future generations. It will essentially serve as a guardian of the global ‘common concerns’, ‘common heritage of mankind’ and the global environment. In the changed context, the UNTC need to serve as a trustee for betterment of the humankind and for the survival of the planet earth. The new mandate for the environment and the global commons could strengthen the UN and vindicate one of the core purposes for which the ‘United Nations’ came together in 1945 with a solemn resolve “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”.

This article argues that our overly state-centric approach to international environmental law limits the law’s effectiveness in addressing the complex environmental challenges of the Anthropocene. The sources of international environmental law are designed for State-to-State disputes, even though such disputes are rare and do not reflect the nature of most global environmental challenges. The focus of international environmental law has been State responsibility, even though the primary actors of environmental deterioration are not States. Nor has international environmental law focused on individual rights, even though individuals and local communities disproportionately bear the burden of environmental decisions and have the strongest motivation to ensure action is taken. In the future, we should embrace a less State-centric approach to international environmental law—one that incorporates more directly the diversity of actors, contexts and legal norms that are currently involved in protecting the world’s environment. Such a reorientation could enable a rights-based approach that better reflects the realities of ecological limits and holds non-state beneficiaries of pollution and resource exploitation more directly accountable in a wider range of contexts.

Despite the extraordinary proliferation of instruments of international environmental law since the 1972 UNCHE Conference in Stockholm, it appears that diverse forces are acting to maintain the internal coherence of this sub-field of international law, as well as its position firmly within the international law system. A range of institutions and processes ensure the continuing unitary nature of international environmental law within a unitary system of international law, notably including the universalist instincts of the International Court of Justice, the codification routinely undertaken by the International Law Commission, and the universal, pervasive and indivisible character of increasingly relevant human rights norms. These processes of “convergence” act to unify and enrich the fabric of the increasingly elaborate and sophisticated complex of rules, principles and institutional structures comprising international environmental law, while suggesting its growing developmental maturity after 50 years of frenetic evolution and supporting its continuing coherent elaboration.

It is growingly accepted that the Planet has entered into a new geological era, the Anthropocene. Even if it is controversial to assess the changes in the Earth System brought by this geological transformation, it seems clear that the increasing exchange between society and its biophysical support gives as a result a global ecosocial network of astonishing complexity. Consequently, it has been concluded that the Anthropocene would be a more unstable geological period compared with the Holocene, with escalating plausibility of nonlinear disruptive events. International institutions and governments of states continue to produce environmental regulations, inspired in a constitutional framing of the global environmental crisis. This approach is largely based in the concept of sustainable development, which implies a negation of planetary change and ignores the growing uncertainty of planetary processes, according to the complexity of interactions of human agency and planetary evolution in the Anthropocene. The occurrence of nonlinear events is at odds with a political and legal vision which is essentially static, because of the confidence in some kind of technological fix of global environmental crisis. This paper is focused on the inability of sustainability to capture the implications of the narrative of planetary transformation, and explores the concept of resilience as alternative.

In one way or other, the Earth as an ecological system, has been the core concern of modern international environmental law since its conceptualization in the 1970s. This article traces notions of stewardship and state responsibilities for the Earth in international instruments and aims to show that, and why, these notions have remained without tangible results. Even after 50 years of the 1972 United Nations Conference on the Human Environment (UNCHE) we can only conclude that international environmental law (IEL) and governance have failed. Essentially, human rights and responsibilities need to be more clearly defined in international law and with respect to the role of the United Nations and its member states. The Earth Charter and its most recent expression in the 2018 Hague Principles provide for a coherent framework of human rights and state responsibilities associated with Earth trusteeship as a future pathway.

The year 2022 marks the 40th anniversary of Olof Palme’s Independent Commission on Disarmament and Security Issues. The Commission presented its report in 1982, at the height of the Cold War. It developed the concept of common security – the idea that nations and peoples can only feel safe when their counterparts feel safe. By taking the concept of common security as its starting point, the Common Security 2022 initiative has analysed the world we live in and some of the great challenges facing humanity on the planet earth. At the time of 50th anniversary of the 1972 Stockholm Conference (Stockholm+50), the Common Security 2022 recommendations are indications, or steps forward for our shared future that would include addressing the climate change, a process of removing the threat of nuclear annihilation and turning around the ‘super tanker’ of war.

This article envisions the future of the Third Pole Region (TPR) considering the principles and mechanisms for a regional alliance among the countries sharing the Third Pole environment. The TPR comprises the largest and the highest mountain ranges on earth connecting 12 countries. Often referred to as the “Water Tower of Asia” it is the headwater of 10 major Asian rivers that provides water to over 1.4 billion people downstream. The Third Pole environment is rapidly changing – changes driven by both climate and anthropogenic influence. Impact of the increased greenhouse gas emissions is considered to be more serious in the Third Pole than any other place in the world. The rapidly changing climate and its impacts on TPR environment means cascading changes in snow, water, air, land, biodiversity, and people not just in the TPR but also in the adjacent river basins and landscapes. Such transboundary implications demand attention going beyond country led climate action. It demands collaborative science interventions to develop a thorough understanding of climate trends and projections, drivers of changes, depth of consequences, but importantly harmonization of laws and policies to navigate the cost of impact and inactions for the entire region. The prospective “Third Pole Alliance” regional cooperation framework outlined here provides an institutional justification and governance set up to harmonize actions of 12 countries sharing the TPR. The alliance is going to be crucial if we are to regulate development oriented anthropogenic influences, streamline global, regional and local investments for collective climate action, and contribute to keeping the target of 1.5°C – the target which is already too high for the TPR.

The 1972 UN Stockholm Conference on the Human Environment (UNCHE) was ahead of its time in asserting that “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being”. Fifty years later, at Stockholm+50, the human rights approach to environment protection has been significantly consolidated in international law and governance. The article describes and reflects on these developments from the 1972 Stockholm Conference to the 2022 Stockholm Meeting. The consolidation of the human rights approach to environment protection results from normative advances at regional and global scales, further world summits on environment and sustainable development, international treaty-making to protect the environment and human rights, international policy documents and declarations, and remarkable jurisprudential developments. In parallel, fundamental rights relating to the environment have also been recognised in numerous national constitutions and laws. While the human rights approach is not a panacea to resolve all environmental concerns, and to ascertain due concerns for non-human species and interests that are not directly linked to human well-being, it is a key to ensure that no one is left behind in the pursuit for sustainable development and prosperity.

This article is the revised text of the 2020 Stockholm Environmental Law lecture. Its two parts discuss, respectively, some of the issues surrounding access to justice by NGOs in order to protect the environment and whether the time has come to add a fifth crime of ‘ecocide’ to the crimes against humanity that are criminalised under the Rome Statute.

Wetland ecosystems, freshwater, coastal and coral reefs, are important ecosystems as they provide many ecological services and ensure livelihood of people. The increase in carbon dioxide and global temperatures change in precipitation patterns, and acidification of oceans can adversely affect these ecosystems. It is expected that increase in temperature in lakes, reservoirs and coastal seas will affect flora, fauna and fisheries. The increase in sea level can erode shorelines and coastal habitats. Coral reefs can degrade due to increase in temperature, sea level rise and acidification. The ecological services provided by these ecosystems have economic value and thus any loss of these habitats can affect livelihood of communities. The global watershed and coastal management approaches such as the 1971 Ramsar Convention and 2030 Sustainable Development Goals (SDGs) provide key tools to protect these ecosystems. A robust global wetland information repository system needs to be developed for providing necessary data to effectively model climate change impacts at local and regional levels. The knowledge about climate risks to wetlands, integrated with effective governance at national, regional and global levels along with informed people, are key elements for protection and sustainable future of wetlands. It is in this global context and decisions of the successive Ramsar Conference of Parties (COP), within the limits of time and space, this study has sought to examine the climatic risks to the wetland’s ecosystems. The data and the situation in the Indian sub-continent have been used as an example for the purpose. We need to look for concrete ideas and solutions to address the challenge of climate change risks to the wetland ecosystem at the juncture of Stockholm+50 (2022) and beyond.

We are already witnessing climate-induced migration and thus must prepare to address the next decades of even more human mobility as a consequence of the climate disruption crisis. Fifty years after the Stockholm Conference, international environmental law still needs solutions to protect those persons most vulnerable to environmental harm. This paper seeks to focus on the concept of reparative justice as the theme and attitude of legal solutions, so as to refocus legal tools to provide relief to those persons who are displaced and dispossessed because of the climate disruption crisis. In this paper, we present possibilities for a reparative climate justice regime that could help to break the current cycle of harm and denial in which states are currently embroiled within international climate negotiations. This focus considers how careful solutions such as credit within the financial mechanisms under the Paris Agreement, in a spirit of trust and solidarity, could contribute to legal solutions to climate migration problems. The paper first iterates the scope and history of climate-induced migration in international law and then presents the case for reparations as a strong legal response to climate-induced migration, before finally exploring the legal avenues within international climate law wherein reparative justice and financing could potentially operate.

Antimicrobial resistance (AMR) represents a global public health challenge. It has been examined through various angles, but the link between AMR and access to Water, Sanitation and Hygiene (WASH) or lack thereof has received little attention. Both AMR and WASH relate directly to the realization of the rights to health, water, and sanitation. In addition, both can affect the enjoyment of the right to environment. AMR is particularly complex from a rights perspective. Access to medicines contributes significantly to the realization of the right to health. At the same time, AMR affects the poorer sections of society who have disproportionately less access to medicines and to WASH. Rights, equality and justice should thus be at the centre of the development and implementation of law and policy concerning AMR and WASH. As we celebrate 50 years of international environmental law, it is crucial to ask some hard questions concerning the inter-sectional and cross-sectoral dimensions of AMR and WASH from the point of view of rights, equality, and justice. Linking the two would bring various co-benefits that the prevailing silo mentality has prevented.

The urgency of transitioning to a circular economy is by now widely recognized. Overexploitation of our earth has been convincingly evidenced globally. An optimal legal instrumentation is one of the prerequisites for fostering the transition to a circular economy. This article identifies and critically assesses recent developments of relevant legal tools and provides some ideas of what else could be needed for the pathway to a circular economy. Since the EU may be seen as a frontrunner in this area and is rapidly developing additional legal instruments to contribute to the transition, the EU is taken as a showcase. Besides EU law, the role of international law is discussed, as well as the question what individual states can do, within the boundaries of internal markets such as the EU. In short, there still is some room for improvement of EU law, especially concerning the establishment of concrete quantifiable general targets and the introduction of general legal principles of sustainable product design. On a global level, there is an urgent need to discuss and develop a legal framework for fostering the transition to a more circular economy.

The menace caused by plastic waste is one of the biggest challenges the world is facing today. It is established that plastic pollution and its accumulation in the world ocean is one of the greatest threats exacerbating all three planetary existential threats identified by the UN. The presence of plastic pollutants in the marine environment is due to its transboundary and cross-continental movement. Therefore, after five decades of the Stockholm conference, it seems necessary to explore how far the principles and objectives of the Stockholm Declaration can be utilized to accommodate the rising concerns and to address the existing environmental crises, including the plastic pollution. There is a need to develop a cooperative scheme that enables the international community of States to come together and find a solution using the expertise of the Basel Convention. Such an initiative – a sort of alliance of states, both members and non-member States to the Convention – could also pave the way for similar collaboration among States to tackle the issues associated with plastic and other forms of pollution.

Where do we stand, 50 years past the Stockholm Conference and almost 80 years past Bretton Woods? What is the role of international trade in the contemporary systems design that has emerged from these two historic events in the turn of times? Climate change is a global human and environmental challenge that calls for more coherent action to achieve shared climate goals in times of climate emergency. It is thus argued, that international trade must become more systemically integrated, greener and more sustainable for that matter. The focus lies on the World Trade Organization and its potentially bridge-building function between distinct legal and political fields, which have long been perceived irreconcilable, but which are by their very nature inherently connected.