Ebook: Perspectives of Women Scholars on International Environmental Law

The 2024 Summit of the Future (22–23 September) became yet another momentous global conference. Following in the wake of the 2023 New York Summit on Sustainable Development Goals (18–19 September) and the 2022 Stockholm+50 Conference (2–3 June), it once again addressed the global environmental problematique. SDG 5 of the 2030 Agenda aims to “achieve gender equality and empower all women and girls.” In the third decade of the 21st century, humankind is still grappling with vital issues concerning gender-based inequality, discrimination and the violence faced by women and girls, who constitute almost half of the world population of eight billion. Coming so soon after the 75th anniversary (10 December 2023) of the Universal Declaration of Human Rights (UDHR) that proclaimed: “All human beings are born free and equal” (Article 1), the SDG Summit was a grim reminder of these gender-based issues. A forward-thinking Indian delegate, Hansa Mehta, is credited with insertion of word “human” in place of “men” in the 1948 UDHR. At the time (May 13, 1946), the draft prepared by the UN Sub-commission on the Status of Women vividly underscored the fact that “Freedom and equality are essential to human development and whereas woman is as much a human being as man and, therefore, share with them.”

Notwithstanding the cherished goals prescribed in international human rights and other global regulatory instruments to bring about changes in gender related approaches, women and girls worldwide still face grim challenges, which predominantly emanate from centuries-old cultural attitudes, and the harsh reality of a largely male-centric global, economic, political and legal order. These attitudes are all too often reflected in the scholarly realm too. Hence, it was thought timely to elicit the perspectives of women scholars from all continents. The basic idea mooted by this editor was: if women were to take a look at the world’s environmental problematique, they might yield a different perspective – and hence ideational view – of our environmental future.

The result of this idea was a plan to devote an entire EPL Special Issue to highlighting the perspectives of women scholars on international environmental law and governance processes. This became even more relevant when set against the backdrop of the chastisement by the UN Secretary-General Antonio Guterres of the Stockholm+50 Conference on 2 June 2022 to the effect that “global well-being is in jeopardy, in large part because we have not kept our promises on the environment…Earth’s natural systems cannot keep up with our demands. We are consuming at the rate of 1.7 planets a year”. In this light of this address, prominent women scholars from all parts of the world were invited to contribute their thoughts on various facets of the global environmental challenge. The editorial process of inviting contributions was a humbling experience. Extensive communication with this group of eminent scholars revealed insights into the serious and persistent obstacles many of them still face as regards issues of gender parity, work environment, and the balancing of careers, families and health issues. While we did not achieve the number of contributions that had originally been envisioned from women scholars across numerous aspects of the IEL landscape, the effort nevertheless represented an important contribution to knowledge and scholarly literature in the field and provided an important platform for the voices of these women to be heard.

This volume presents those ideational papers published in the EPL Special Issue organized in five parts: (1) Function of International Law (Elisa Morgera; Sara L. Seck); (2) Sustainability (Patricia Kameri-Mbote and Nkatha Kabira; Claudia Ituarte-Lima et al.); (3) Climate Change (Rowena Maguire et al; Susana Borras-Pentinat; Moumita Mandal; Mathilde Hautereau-Boutonnet and Sandrine Maljean-Dubois); (4) Biological Diversity (Pascale Ricard; Marta Abegon-Novella); and (5) Circular Economy (M.N. Boeve and I.M. de Waal). They address a wide range of issues such as (i) Transformative Change through the Lens of Children’s Human Rights; (ii) Women and the Marine Environment; (iii) Engendering the Legal Framework for Environmentally Sustainable Development; (iv) Environmental Human Rights Defenders to Biosphere Defenders; (v) A Feminist Perspective on UNFCCC; (vi) A Gendered Perspective on Climate Migration; (vii) Role of the Feminist Foreign Policy in Climate Change Exacerbated SGBV; (viii) Tools and Actors for a Better Enforcement: A Case of the Paris Agreement on Climate Change; (ix) A Preliminary Legal Analysis on 2023 BBNJ Agreement; (x) Making Sense of the Agreement on Biodiversity Beyond National Jurisdiction; and (xi) Global Plastic Pollution and Transition Towards a Circular Economy: A Case of the EU’s Legal Framework on Plastics.

The prognosis, legal analysis and projections contained in the abovementioned ideational papers address some of the contemporary global environmental challenges of our times and provide a flavor of the scholarly engagements required for a better common future. Cumulatively, within the limits of time, space and resources, the perspectives of women scholars give us a glimpse of a potential future trajectory for the required legal approaches, as well as vindicating the audacity of hope that this author has painstakingly sought to underscore throughout the pages of EPL as a global scholarly journal.

We hope that the issues raised, legal analysis provided and balanced approaches presented in the contributions of these scholars will inspire other promising women scholars to come forward with more cutting- edge contributions in the field. We would welcome such contributions from all scholars from every part of the world within the remit of the journal, whether for the thematic special issues or otherwise. It is exemplified by the contributions of outstanding scholars from around the world to the EPL special issue 54 on the Planetary Future (2024) that envision a pathway to our planetary future.

Bharat H. Desai

Editor

The interpretative clarifications under the UN Convention on the Rights of the Child on children’s human right to a healthy environment help illuminate areas for transformative change through the evolutive interpretation and implementation of international environmental law. This article explores how the 2023 UN General Comment No. 26 on children’s rights and the environment, with a special focus on climate change, sheds new light on: a holistic approach to environmental protection; the minimum content of State obligations, including with regard to inter-generational equity; a more ambitious interpretation of precaution; and the inclusiveness of international environmental law fora.

International environmental law-making (IEL) now increasingly highlights the importance of ensuring that women are enabled to play a key role in environmental management and decision-making at all scales, including in relation to the marine environment. This article examines narratives of women in international environmental law, with a focus on the marine environment and human rights intersections. This study reveals that there is a tendency to treat women both as victims in need of saving from ecological devastation, and as saviours whose empowerment will save the world. Recent developments at the intersection of human rights and the environment point clearly to the necessity of embracing an intersectional approach. Beyond this, it is necessary to reflect on what is meant by ‘women’ in international law to answer the question of whether greater inclusion of women in legal processes will make a difference to solving global and local ecological challenges. Ultimately, the article argues that meaningful action will not happen until affluent and powerful men and women learn how to embody the idea of woman themselves, rather than placing the burden to save the world on those whose vulnerability is worsened if not created by affluent overconsumption.

The idea of “sustainable development” was first recognized in 1972 at the U.N. Conference on the Human Environment held in Stockholm. The Conference did not make reference to the concept explicitly but recognized that the concepts of “sustainability” and “development” that were previously addressed separately could be addressed together to create more benefits. The Conference recognised the importance of environmental management for the purposes of sustainable development. In the years that followed the 1972 conference, terms such as “environment and development,” “development without destruction,” “eco-development,” and “environmentally sound development” became common in publications and the works of the United Nations. This article examines the international legal framework on sustainable development and evaluates the extent to which these laws ensure environmentally sustainable development. The article argues that although the legal framework on environmentally sustainable development is quite extensive and steps are being made to engender them, there is still need to move beyond formal equality and substantive equality to transformative equality. The paper draws on feminist perspectives and calls for engendering the legal framework so as to make environmental sustainability a reality.

People form part of the biosphere - the biosphere being the whole intertwined network of life on Earth. While there is convergence on the need for societal change for just sustainability and a healthy biosphere, the pathways to achieve these transformations remain relatively unclear. Through legal interpretation, conceptual and thematic analysis of academic and grey literature, we seek to answer the following two questions: (a) how does the concept of Biosphere Defender enable a deeper and distinct understanding of who environmental defenders are and their role in just sustainability transformations? and (b) how does international human rights law contribute to specify the content of biosphere defenders’ rights? To address these questions, we first critically review the scope and limitations of the notion of Environmental Human Rights Defenders (EHRD) in human rights narratives in international law and policy. We examine how understandings of EHRD portray those defending their land and environment and what limitations this concept has in terms of possibilities for reflecting on transformations towards just sustainability. Second, we propose an alternative and/or complementary understanding of EHRD by using the concept of Biosphere Defenders. We also develop the Defend-Biosphere Framework to analyse the role of these actors as agents of change in pathways towards just sustainability. Third, to empirically illustrate the role of Biosphere Defenders, and the use of the Defend-Biosphere Framework we present two case studies from Latin America analyzing initiatives catalyzed by rural people who are defending their lands and territories while generating new ways to relate to socio-ecological systems and engage with the State and the economy. In both case studies, we find that relational values of solidarity, responsibility, and care (between human and other living beings) are central in understanding Biosphere Defenders’ initiatives creating pathways towards just sustainability. The findings of this article are of particular relevance to the implementation of the right to a clean, healthy and sustainable environment in the context of the Escazu Agreement on access to information, public participation and access to justice in environmental matters in Latin America and the Caribbean, the Aarhus Convention on access to information, public participation and access to justice in environmental matters and the Montreal-Kunming Global Biodiversity Framework in particular Target 22 (access to information, participation, access to justice and environmental defenders) and Target 23 (gender equality).

The United Nations Framework Convention on Climate Change (UNFCCC) was the only multilateral environmental agreement to emerge from the Earth Summit in 1992 which did not include any references to gender. Recognition of gender within the UNFCCC has been exceedingly slow and largely tokenistic with a focus on ensuring ‘gender balance’ within UNFCCC meetings and processes. This article explores the emergence of gender language within the UNFCCC by reflecting upon: where we have come from; where we are now; and where we are going with respect with gender. While there was very little progress in the early days of the UNFCCC, this article shows that from 2001 onwards there have been a series of small gains, which will be explained and critique. Much work remains to be done with this paper suggesting some concrete steps such as hosting a Gender COP, ensuring financing for National Climate Change Gender Focal Points and embedding gender meaningfully within existing climate finance processes. In recommending future actions, the paper draws on insights from the Pacific and Australian experience.

Climate change is being felt with increasing force and frequency, not only due to extreme weather events, but also due to the number of people who are forced to abandon their territories due to crucial humanitarian needs and protection gaps. However, pre-existing social, economic, and environmental vulnerabilities create a greater likelihood of being forced to move due to the impacts of climate change. Particularly important is this situation for women and girls who face intersectional and socio-structural discriminations, which shape their adaptation and resilience to climate impacts and, in the worst cases, conditions their migration processes. While migration induced by climate change has a very important gender component, it has not received enough attention. Neither statistical data nor legal frameworks adequately integrate and address climate migration from a gender perspective, which contributes to perpetuating vulnerabilities, invisibility and lack of protection. Therefore, this article addresses the international legal potentialities, developments, but also the limitations, to protect climate migrants from a gender sensitive and responsive perspective.

Feminist foreign policy (FFP) ensures the representation and participation of women both nationally and internationally. Initially, it aimed to focus on some special areas relating to women, peace and security especially sexual violence in conflict and women representation in peace process. Now, the ambit has been broadened and issues relating to climate change are also included. The research has already proved that women suffer double victimization as a consequence of climate change. Climate change exacerbates sexual and gender-based violence (SGBV), so, they face all types of consequences of climate change (CC) and natural disasters as human beings but they face SGBV in particular because of their gender. The FFP states respect for international law and efforts to address gender inequalities and violence. Unfortunately, the existing international law e.g. the CEDAW or human rights treaties etc. generally or law on climate change e.g. the UNFCCC, the Paris Agreement etc. specifically do not address the issue. Also, the interlinkage between climate change and SGBV has not been discussed earnestly. The FFP has been consistently pursued at the UNFCCC COP negotiations in the context of climate peace initiative etc and involved women especially local and indigenous in the decision-making process. Thus, the FFP can be one of the strongest global voices to end SGBV by ensuring women’s participation; addressing the legal gap; and advocating for the adoption of the gender-responsive law and policy both nationally and internationally. They can be a leader at the international level and a change-maker at the national level. This study has sought to explain how climate change exacerbated SGBV has emerged as a subject of FFP and how it can address the challenge of SGBV exacerbated by CC, the relevant legal issues therein and the road ahead.

The Paris Climate Agreement can be seen as illustrating the evolution of how legal norms are enforced in international law. While the Agreement benefits from a carefully thought-out enforcement mechanism in the international legal order, with techniques that encourage compliance rather than sanction non-compliance, its enforcement is also supported by domestic legal orders. Indeed, the Paris Agreement benefits from both hard and soft enforcement mechanisms. Here, all techniques and all actors have a role to play. This contribution shows that in order to discern the enforcement mechanisms attached to a legal instrument, it is sometimes necessary to take a global and complex look at all legal orders, techniques and actors, since they can act in a complementary manner.

On 4 March 2023, the Member States of the United Nations agreed in New York on the text of a new treaty on biodiversity in areas beyond national jurisdiction (BBNJ or ABNJ) – in international maritime areas. It took marathon process spread over more than ten years of informal discussions, four years of formal negotiations and the final session of almost 36 hours. Rena Lee, the President of the intergovernmental conference, announced to the applause of the delegates that the ship had finally “reached the shore”. This new BBNJ Agreement, now signed by more than 80 countries, is a historic step for the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction. It is also in consonance with the objectives of the global Kunming-Montreal Biodiversity Framework adopted at CBD COP15 in December 2022. This article aims to provide a preliminary analysis of the environmental (preamble, principles and approaches, area-based management tools and environmental impact assessments) and economic (marine genetic resources, capacity building and transfer of marine technologies) content of the 2023 BBNJ Agreement, which are both the result of important compromises. It also seeks to underline the numerous remaining uncertainties and potential difficulties it raises, especially in terms of implementation and articulation with existing instruments and frameworks.

The negotiations of the future regulation governing the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction successfully concluded last March 2023 and the BBNJ Agreement was formally adopted by consensus on 19 June 2023. The previous article “Biodiversity Beyond National Jurisdiction: ways forward to reach a necessary Agreement”, published in the EPL 52 (1) 2022, defended the BBNJ Agreement potential to make a very positive impact on the governance of the oceans in general and proposed some formulas to facilitate the adoption of the treaty in a scenario where States had very different expectations. The present work reviews that article, first, to update what the result of the negotiation has been with respect to the main issue areas of the regulation; secondly, to identify which negotiation formulas have certainly helped to adopt the treaty; and thirdly, to reflect on to what extent the final text of the Agreement will be ambitious and effective enough to fulfil its objectives.

Since the 1950s, billions of tons of primary plastic waste have been generated around the globe to date. Instead of the current linear make-use-dispose plastic economy, a circular plastics economy is said to be able to reduce plastic pollution in the environment. Recently, the United Nations Environment Assembly adopted a resolution to forge a globally binding treaty addressing plastic pollution by addressing the full life cycle of plastics and by taking such a circular approach. A circular approach for plastics has already been adopted by the EU. Therefore, this contribution sets out some lessons that the UN Treaty can learn from the implementation of the EU’s circular approach for plastics. These relate to the restriction on placing on the market of certain plastic products, the introduction of ecodesign requirements and the establishment of EPR schemes. The EU legal framework on plastics shows that it is important to take into account the inherent interlinkage between not only plastic life cycle stages, but also between the different provisions and obligations, in order to maximize the contribution to and unlock synergies in tackling plastic pollution.