Earth System Law for the Anthropocene


Law has failed to address the ever-deepening socio-ecological crisis of the Anthropocene. In the light of, and as a response to, law’s failures in this respect, this paper argues in support of developing a new legal paradigm for the Anthropocene epoch called Earth system law. It does so first by briefly describing the Anthropocene trope and the extent and dimensions of its socio-ecological crisis. The paper then specifically focuses on international environmental law as an example of how and why law has become incapable of, and inappropriate for, addressing this crisis, and for being unable to respond to the Anthropocene’s regulatory demands. By drawing on three Earth system-related regulatory implications of the Anthropocene trope (i.e., inclusivity, interdependencies and complexity), the final part of the paper makes out a case in support of reforming law and creating a new Earth system oriented legal paradigm that is fit for purpose in the Anthropocene epoch.

Louis J. Kotze, North-west University, South Africa and University of Lincoln


International Environmental Law’s Lack of Normative Ambition: an Opportunity for the Global Pact for the Environment?


This paper argues that international environmental law (iel) is not sufficiently ambitious to confront the Anthropocene’s socio-ecological crisis. The critique specifically focuses on iel’s lack of ambitious and “unmentionable” ecological norms such as rights of nature, Earth system integrity, and ecological sustainability that are not yet considered to be part of the corpus of iel, but that arguably should be in light of the prevailing and ever-deepening socio-ecological crisis. Assuming that the recent Global Pact for the Environment initiative and its accompanying United Nations-mandated report that assesses possible gaps in iel are indicative of the type of reforms we might expect of iel now and in future, the paper determines if and the extent to which the Global Pact initiative embraces ambitious norms and addresses iel’s “unmentionable” normative gaps. A secondary, but related, objective of the paper is to briefly respond to the recent view that any radical critique of the Global Pact initiative is either unfounded, unwarranted or undesirable.

Louis J. Kotze, North-west University, South Africa and University of Lincoln


Reflections on the Rule of Law in a Time of Socio-ecological Crisis


States have long been using law to respond to crises. One example is the body of global fiscal laws that was designed to stimulate economic growth through measures such as quantitative easing following the 2008 Global Financial Crisis.1 Decidedly more problematic, states have equally been deliberately avoiding the law when responding to crises. An oft-cited example is the broad emergency powers to embark on anti-terrorism measures that Western governments assumed following the 9/11 terrorist attacks; powers that have been used by states in some instances to commit serious ongoing human rights abuses.2 How appropriate is it for a constitutional state to assume such sweeping powers in times of crises? Should it always be bound by the rule of law and act within the limits of the law and the constraints of human rights in the face of emergencies? Or could it, under specific circumstances, circumvent legal requirements in order to act decisively, swiftly and effectively to address the emergency? And if it could, what would this mean for the integrity, stability, durability and legitimacy of the constitutional state?

Louis J. Kotze, North-west University, South Africa and University of Lincoln


The Anthropocene, Earth system vulnerability and socio-ecological injustice in an age of human rights


Despite important victories, human rights have been unable to respond effectively to the many deeply intertwined socio-ecological injustices in the Anthropocene. In particular, human rights have failed to practically address, in a meaningful way, the plights of billions of oppressed human beings (and failed to address the vulnerability of non-human beings), while conceptually human rights are proving to be ill-suited for the epistemic demands of the Anthropocene. As a trope, the Anthropocene presents an opportunity to re-interrogate the role of human rights as key mechanisms in the state’s regulatory mix to address socio-ecological injustices arising within the context of a vulnerable Earth system. This article reflects upon whether a re-interrogation could be accomplished by utilizing vulnerability theory, which is an alternative approach to ethical evaluation. As a heuristic, vulnerability has the potential to inform an ontological change of stance away from a human-centred, neoliberal, and impregnably Western understanding of human rights, towards an altogether more porous and contingent understanding of the vulnerability of the entire living order as a starting point from which to critique the epistemological closures and regulatory challenges confronting the human rights paradigm in the Anthropocene.

Louis J. Kotze, North-west University, South Africa and University of Lincoln


Towards a Global Pact for the Environment’: International environmental law’s factual, technical and (unmentionable) normative gaps


A key feature of the 2018 United Nations (UN) General Assembly Resolution ‘Towards a Global Pact for the Environment’ is the preparation of a technical and evidence‐based report by the UN Secretary‐General that identifies and assesses possible gaps in international environmental law (IEL) and environment‐related instruments with a view to strengthening their implementation. The gap report will be considered by an ad hoc open‐ended working group to discuss options to address the possible gaps. In this article, we reflect on the likely impact of this initial gap identification and analysis phase of the intergovernmental process. We are specifically concerned with the notion and the nature of ‘gaps’ in the context of the draft Global Pact, the Resolution and more generally in IEL, and will explore whether the concept of ‘gaps’ has meaningful value and whether such gaps are factual, technical or normative in nature. While we believe an analysis of the strengths and weaknesses of IEL should be welcomed, we are not entirely convinced, however, that a gap analysis in the form and fashion currently proposed is the most effective or useful way to go about this.

Duncan French, Professor of International Law, University of Lincoln

Louis J. Kotze, North-west University, South Africa and University of Lincoln


Earth system law: The juridical dimensions of earth system governance


While the focus of earth system governance is on the human-social aspects of Earth system changes, law has played a peripheral part in the earth system governance scientific agenda. Earth system governance perspectives have also not significantly infiltrated the juridical domain. In this paper we seek to initiate a debate on the juridical dimensions of earth system governance. We make out a case in support of developing a new overarching legal phenomenon that, more than environmental law (among others) comprehensively accommodates and encapsulates the juridical aspects of earth system governance, including a new accompanying research agenda. We call this new legal phenomenon ‘earth system law’. Earth system law, as we aim to show, could introduce a new era in legal scholarship, while seeking to comprehensively respond to the regulatory challenges presented by a changing Earth system in the Anthropocene. For illustrative purposes, we provide a conceptual framework of earth system law by focusing on international environmental law. We show how core considerations of earth system law might set in motion some of the conceptual and regulatory changes required to eventually progress from international environmental law to a mature form of earth system law.

Louis J. Kotze, North-west University, South Africa and University of Lincoln

Rakhyun E. Kim, Utrecht University, The Netherlands


A Global Environmental Constitution for the Anthropocene?


International environmental law (IEL) has been unable to respond effectively to the Anthropocene’s global socio-ecological crisis, which is critically existential and requires radical interventions and regulatory reform. This article explores the potential of the recent United Nations (UN)-backed initiative to adopt a Global Pact for the Environment as an opportunity to reform IEL. It does so by (i) reflecting on the Anthropocene’s demands for a constitutionalized form of IEL through the lens of global environmental constitutionalism; (ii) investigating the extent to which the Global Pact could contribute to such a vision; and (iii) suggesting ways in which to strengthen the constitutional potential of the Global Pact in this endeavour. To this end, the article revisits the World Charter for Nature of 1982, which seems to have slipped off the radar in academic as well as policy circles. A case is made for renewed support of the Charter – which already enjoys the backing of the majority of UN General Assembly member states, and which has constitutional qualities – to serve as a ‘best-practice’ example during the ensuing negotiation of the Global Pact.

 

Louis J. Kotze, North-west University, South Africa and University of Lincoln


A critique of the Global Pact for the environment: a stillborn initiative or the foundation for Lex Anthropocenae?


In May 2018, the process which may ultimately lead to the negotiation of a legally binding Global Pact for the environment formally commenced under the auspices of the United Nations General Assembly. Expectations for the Pact are high, evidenced in particular by its multiple and overlapping objectives: to serve as a generic binding instrument of international environmental law (IEL) principles; to integrate, consolidate, unify and ultimately entrench many of the fragmented principles of IEL; and to constitute the first global environmental human rights instrument. In the wake of the impending intergovernmental process, the paper offers a thorough critique of the draft Pact in its present iteration. We do so with the aim of evaluating the strengths and weaknesses of the present draft Pact by interrogating: (a) its diplomatic and symbolic relevance and possible unique contribution at the policy level to global environmental law and governance, and (b) its potential at the operational level of IEL and global environmental governance, focusing on the extent to which the draft Pact accommodates both existing and more recent rules and principles for environmental protection. As the Pact’s primary ambition is to become a universally binding global treaty, it would be churlish not to recognise its potential for innovation, as well as the considerable opportunity that the negotiation of the Pact will have to generate broad-sweeping and positive impacts. However, our central thesis is that only if the Global Pact were to incorporate ambitious normative provisions to strengthen those public and private global governance efforts that aim to halt the deterioration of Earth system integrity, as well as to maintain and improve integrity, will it be able to offer a firm foundation of the type of Anthropocene Law, termed here as the Lex Anthropocenae, required to confront head-on the deep socio-ecological crisis of the Anthropocene.

Duncan French, Professor of International Law, University of Lincoln

Louis J. Kotze, North-west University, South Africa and University of Lincoln


Sustainable Development Goals Law, Theory and Implementation


Building on the previously established Millennium Development Goals, which ran from 2000–2015, the 2015 Sustainable Development Goals (SDGs) provide the UN with a roadmap for development until 2030. This topical book explores the associated legal and normative implications of these SDGs, which in themselves are not legally binding.

The 17 goals and 169 targets of the SDGs cover areas as crucial as poverty reduction, climate change, clean water and access to justice. Combining both thematic and goal-specific analysis, expert contributors establish the relevance not just of international law, but also of a broader range of normative frameworks including constitutional norms, domestic regulatory law and human rights. Connecting the SDGs to wider debates in international law and politics, this book ultimately demonstrates that law has an important constitutive and instrumental role to play in both implemention and analysis.

The first of its kind to offer a specific focus on the relationship between law and the SDGs, this much-needed book will prove invaluable for scholars in the field of international sustainable development. Its insightful observations will also provide food for thought for both related international organizations and national government officials.

 

Duncan French, Professor of International Law, University of Lincoln

Louis J. Kotze, North-west University, South Africa


The Anthropocentric Ontology of International Environmental Law and the Sustainable Development Goals: Towards an Ecocentric Rule of Law in the Anthropocene


In this article we argue that the Anthropocene’s deepening socio-ecological crisis amplifies demands on, and exposes the deficiencies of, our ailing regulatory institutions, including that of international environmental law (iel). Many of the perceived failures of iel have been attributed to the anthropocentric, as opposed to the ecocentric, ontology of this body of law. As a result of its anthropocentric orientation and the resultant deficiencies, iel is unable to halt the type of human behaviour that is causing the Anthropocene, while it exacerbates environmental destruction, gender and class inequalities, growing inter- and intra-species hierarchies, human rights abuses, and socio-economic and ecological injustices. These are the same types of concerns that the recently proclaimed Sustainable Development Goals (sdgs) set out to address. The sdgs are, however, themselves anthropocentric; an unfortunate situation which reinforces the anthropocentrism of iel and vice versa. Considering the anthropocentric genesis of iel and the broader sdgs framework, this article sets out to argue that the anthropocentrism inherent in the ontological orientation of iel and the sdgs risks exacerbating Anthropocene-like events, and a more ecocentric orientation for both is urgently required to enable a more ecocentric rule of law to better mediate the human-environment interface in the Anthropocene. Our point of departure is that respect for ecological limits is the only way in which humankind, acting as principal global agents of care, will be able to ensure a sustainable future for human and non-human constituents of the Earth community. Correspondingly, the rule of law must also come to reflect such imperatives.

Duncan French, Professor of International Law, University of Lincoln

Louis J. Kotze, North-west University, South Africa and University of Lincoln