Ebook: Our Earth Matters

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, 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

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.

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.

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.

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.

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.

This article provides a diagnostic of a major structural problem of environmental law before suggesting a way to address it. The problem is that environmental law, even avant la lettre, was and remains designed as a law of negative externalities: a body of laws fundamentally organized so as to minimize interference with the underlying transaction while mitigating its negative externalities. This article proposes instead to reframe environmental law not as the expression of allocative efficiency but as a means of steering socio-economic processes in directions that are more likely to avoid an irreversible change in Earth System dynamics.

The global environmental conferences convened by the United Nations General Assembly (UNGA) during the last fifty years have contributed to the development of international environmental law and institution-building. Yet, given the deteriorating state of the global environment they are but one element of international environmental governance. While they were important to bring environmental issues to the attention of states, the time for agenda-setting seems over. Rather the international community must move on to the implementation of existing binding and non-binding rules and principles. While the UNGA continues to play an important role in the context of sustainable development and the Agenda 2030 process and is, indeed a stable platform for international cooperation on environmental issues, it seems that the time for comprehensive global environmental conferences may have come to an end, unless more innovative mechanisms for the implementation of international environmental law and policy are brought forward.

The environmental crisis compels humanity to redefine its relationship with nature. This calls for the principles that would guide the new pathway to be outlined and enshrined into a global treaty. An environmental charter for the future would serve the purpose of a social contract and define the norms which would allow humanity to coexist with its natural environment. In this context, this article argues that faith in the international system could be restored by a global agreement on the basic principles which are to guide the new system for international environmental governance. It will thus first focus on (i) exposing the merits of principles in a legal system, (ii) tackling the purely technical vision that weakens both the creation and implementation of international environmental law and (iii) finally, it will make the case for a global environmental charter that would enshrine fundamental principles and rejuvenate the values that founded the international system.

‘Climate change law’ is considered by a number of legal scholars as an emergent novel discipline. The question, then, is whether the advent (and future prospect) of climate change has resulted in a coherent autonomous new body of law, be it a nascent one; or is it nothing more or less than the application of existing national and international environmental law to climatic problems? It is perhaps worth recalling that international environmental law itself only ascended to the rank of a recognized discipline of its own in the 1990s, over considerable academic scepticism at the time. Not un-similarly, the ongoing new project of the UN International Law Commission (ILC) for the drafting of guidelines on “protection of the atmosphere” has met with resistance from a few powerful States claiming that there is no need for further codification of international law in this field. Yet, considering our common interest in conserving the quality of the Earth’s atmosphere and climate, the ILC project may indeed encourage further development of a concept of inter-generational “planetary trusteeship”, owed by States as public trustees to present and future citizens as the beneficiaries.

Protagonists of global environmental governance often view the sovereign State as well as the principle of sovereignty as major stumbling blocks for effective environmental conservation and sustainable development. Some even herald the demise of the idea of the sovereign State. However, reality has it differently. Sovereignty is no longer an unqualified concept. Manifold new duties have been imposed upon the sovereign State as a result of the progressive development of international law. Much of the modern international law movement vests States with the responsibility to adopt regulations, to monitor and secure compliance and exercise justice in order to achieve its implementation, whereas supranational global environmental governance has remained notoriously weak. This article examines this proposition by reference to the environmental and developmental role of states in three landmark multilateral treaties: The United Nations Law of the Sea Convention (1982), the Convention on the Conservation of Biological Diversity (1992) and the Paris Agreement on climate change (2015). They demonstrate that sovereignty serves as a key organisational principle for the realization of global values, such as environmental conservation and sustainable development.

Armed conflicts have direct and indirect impacts on the natural environment, and climate risks now magnify this harm for dependent communities. Too often, the natural environment is directly attacked or suffers incidental damage as a result of the use of certain methods or means of warfare. It is also at risk from damage and destruction to the built environment, across urban and rural areas. To reduce this harm, parties to armed conflict can integrate legal protections for the environment into their armed forces’ doctrine to reduce damage as they fight. Humanitarians in turn must commit sufficient resources and expertise to respond to the needs of those coping with the environmental consequences of conflict, and limit their own climate and environmental footprint. In order to address this challenge, in November 2020 the ICRC released the Guidelines on the Protection of the Natural Environment in Armed Conflict which aim to contribute in a practical way to promoting respect for and protection of this precious asset during armed conflicts.

While 2020 – dubbed the “Super Year for Nature – has seen the world battling an unforeseen global pandemic, this article comes back on the Convention of Biological Diversity and its regime, studies the aim of the negotiations of the post-2020 global biodiversity framework and the relevance of this framework for the planet, considering that the protection of biological diversity impacts all aspects of human life, including the full enjoying of human rights and protection against future pandemics.

We already know that the ocean is at a crisis point. For the last twenty years and more, scientific report after report has flagged the increasing decline of ocean biodiversity and the damaging impacts of human activities – including over-extraction of resources and pollution, by plastic, of course, but overwhelmingly by anthropogenic climate change. It is only by allowing wildness to return – allowing natural ecosystems to return and heal themselves can we save the planet from ourselves. There are already two complex legal regimes governing both the ocean and climate change: the 1982 UN Convention on the Law of the Sea (LOSC) and the 1992 UN Framework Convention on Climate Change (UNFCCC). However, it appears, “the Law of the Sea and the Climate Change regimes are two of the giants of the international law treaty arena, yet … they appear like ships that pass in the night.” How do we move forward on saving the blue half of our endangered planet?

As a body of rules and a basis for inter-State cooperative practice, international water law suffers from certain important shortcomings. Most significantly, it is characterised by substantive normative indeterminacy, and from related deficiencies in its associated procedural and institutional frameworks, which retard its progressive development and limit its capacity to respond to the looming challenges of the impending global water crisis. Though it has evolved progressively in recent years to incorporate a far-reaching obligation upon watercourse States to adopt an ecosystem approach to the management of shared watercourses, this very development highlights international water law’s systemic difficulty in accommodating water management techniques which are critically important to effective implementation of such an approach and, ultimately, to addressing the water crisis. Such techniques, with which international water law struggles, include multi-faceted benefit-sharing, adaptive management, and public and stakeholder participation. The latter two are considered essential for implementation of an ecosystem approach, while the former comprises a cooperative technique facilitated by an ecosystem approach, by means of which watercourse States might eliminate inefficiencies and ensure optimal utilisation of shared water resources. These problems illustrate the urgent imperative of continuing to develop and refine, if not completely reimagine, the rules of international water law.

This article examines – from an international law perspective – the interface between soil protection, land degradation neutrality, food security, climate governance and trade in agriculture. Although these different spheres are most often viewed in isolation, an attempt is made to analyse them more holistically with the aim of identifying the connectedness for the purpose of finding some strategies for a better common future.

Environmental law became global through the adoption of environmental treaties in the last quarter decade of the 20th century. Similarly, globalisation of criminal law accelerated when the Convention on Transnational Organised Crime 2000 (CTOC) deepened international legal cooperation between States to combat transnational crime. A protocol to the CTOC, complemented by voluntary guidelines and model legislation, could promote international harmonisation of laws against environmental crimes. This article argues that the time is right to bring together certain elements of international environmental and transnational criminal law.

Olof Palme, the former Prime Minister of Sweden, underlined the importance of a firm global response to the growing environmental crisis in his 06 June 1972 address to the first UN Conference on the Human Environment (UNCHE) held in Stockholm. He prophetically observed: “it is absolutely necessary that concerted, international action is undertaken … solutions will require far-reaching changes in attitudes and social structures”. Almost 50 years later, it is painfully clear that the necessary changes have not taken place and that time is now even more limited to make the necessary, far-reaching changes. How can the conclusions from the Stockholm Conference and ideas envisioned by Olof Palme can guide us into a better common greener future?

This article seeks to focus on ‘peacebuilding’ as a construct of peace among groups that have previously been in conflict. This calls for moving beyond peacemaking and conflict resolution to consider the longer-term efforts at establishing sustainable peace. Notwithstanding the longstanding efforts of UNEP’s Post-Conflict and Disaster Management Branch, there has been very limited development of international normative and institutional structures targeting the process of post-conflict sustainable peacebuilding. The article considers how far the current international environmental governance (IEG) regimes are responsive to the specific challenges to post-conflict situations. It seeks to briefly consider four key characteristics of IEG regimes: (i) Ad-hoc and subject specific; (ii) Incremental and facilitative; (iii) Degree of reciprocity; and (iv) Science-based.

Reviving the United Nations Trusteeship Council (UNTC) and the evolution of the idea of trust in the global domain underscores that there are places, territories, and areas known as ‘global commons’ that require special and careful nurturing. The TC under the UN Charter sought to continue the spirit and essence of the ‘sacred trust’ with a ‘new mandate,’ even as it now lies dormant since 1994. From a scholarly perspective, such a move eminently makes sense since it could bring to life an entity within the UN. It will essentially serve as a guardian of the global ‘common concerns’ and ‘common heritage of mankind’ as well as the global environment. It would serve as a trustee for the present and future generations of humankind. A revived TC with a 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”

The issue, international organization for the protection of the environment perhaps more than those in any other area of international law, is characterized by the contestation of the policies and aspirations of developing and industrialized countries. The discussions which preceded the 1972 Stockholm Conference concerned partly the type of international institutional arrangement required for addressing the environmental problems. As regards the institutional reforms with respect to international environmental governance (IEG), the main question is whether to focus on the existing global institution, i.e. UNEP, or to create a new functional international organization. After almost five decades of existence, turning UNEP into a ‘specialized agency’ within the UN system is a reasonable move. It would meet the long-felt need to elevate its status and equip it with the necessary competence and financial stability for the demanding task it should have as an efficient global environmental organization.