(Challenges of Globalisation) Timothy Cadman, Margot Hurlbert, Andrea C. Simonelli - Earth System Law - Standing On The Precipice of The Anthropocene (2021, Routledge) - Libgen - Li
(Challenges of Globalisation) Timothy Cadman, Margot Hurlbert, Andrea C. Simonelli - Earth System Law - Standing On The Precipice of The Anthropocene (2021, Routledge) - Libgen - Li
(Challenges of Globalisation) Timothy Cadman, Margot Hurlbert, Andrea C. Simonelli - Earth System Law - Standing On The Precipice of The Anthropocene (2021, Routledge) - Libgen - Li
This book systematically explores the emerging legal discipline of Earth system
law (ESL), challenging the closed system of law and marking a new era in law and
society scholarship. Law has historically provided stability, certainty, and predict-
ability in the ordering of social relations (predominantly between humans). How-
ever, in recent decades, the Earth’s relationship in law has changed with increasing
recognition of the standing of Mother Earth, inherent rights of the environment
(such as flora and fauna, rivers), and now recognition of the multiple relations of
the Anthropocene. The book questions the fundamental assumption that ‘the law’
only applies to humans, and proposes that the Earth, as a system, has intrinsic
rights and responsibilities. In the last ten years the planet has experienced its hot-
test period since human evolution, and by the year 2100, unless substantive action
is taken, many species will be lost, and planetary conditions will be intolerable for
human civilisation as it currently exists. Relationships between humans, the bio-
sphere, and all planetary systems must change. The contributors address these
challenging topics, setting the groundwork of ESL to ensure sustainable develop-
ment of the coupled socio-ecological system that the Earth has become. Earth
system law is an interdisciplinary and transdisciplinary research project, and, as
such, this book will be of great interest to researchers and stakeholders from a
wide range of disciplines, including political science, anthropology, economics,
law, ethics, sociology, and psychology.
Timothy Cadman is a Senior Research Fellow with the Earth System Gov-
ernance Project and an Associate of its Task Force on Earth System Law. He
is a Research Fellow in the Law Futures Centre and the Institute for Ethics,
Governance and Law at Griffith University, Australia.
Margot Hurlbert is a Senior Research Fellow with the Earth System Governance
Project and an Associate of its Task Force on Earth System Law. She is Canada
Research Chair, Tier 1 Professor in Climate Change, Energy, and Sustainability
Policy at the Johnson-Shoyama Graduate School of Public Policy, Canada.
Edited by
Timothy Cadman, Margot Hurlbert and
Andrea C. Simonelli
First published 2022
by Routledge
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© 2022 selection and editorial matter, Timothy Cadman, Margot Hurlbert
and Andrea C. Simonelli; individual chapters, the contributors
The right of Timothy Cadman, Margot Hurlbert and Andrea C. Simonelli
to be identified as the authors of the editorial material, and of the authors
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PART I
Mapping the contours of Earth system law 13
2 Dimensions and definitions, signposts and silos in Earth system
law 15
TIMOTHY CADMAN, MARGOT HURLBERT AND ANDREA C. SIMONELLI
PART II
The analytical dimensions of Earth system law 31
3 Earth system law in the age of humanity 33
WALTER F. BABER
PART III
The normative dimensions of Earth system law 109
7 Rights of nature as an expression of Earth system law 111
ALICE BLEBY
9 Legitimacy and the role of law for social and ecological resilience 148
BRITA BOHMAN
PART IV
The transformative dimensions of Earth system law 183
11 The Earth system, the orbit, and international law: The
cosmolegal proposal 185
ELENA CIRKOVIC
12 Integrating the Mexican water law into the Earth system law
perspective 205
GABRIEL LOPEZ PORRAS
Index 284
Illustrations
Figures
3.1 An Environmental Rights Opportunity Structures (EROS) force
field 47
3.2 A model of environmental human rights research and advocacy 51
6.1 A critical realist Earth system legal research framework 92
12.1 The Earth system law conceptual framework 207
15.1 Earth system law’s expanded cognitive and moral framework 281
Tables
1.1 The analytical, normative and transformative dimensions of
ESL and associated questions 4
2.1 The analytical, normative and transformative dimensions of
ESL and associated questions with proposed answers 25
6.1 Earth system law research lens and contextual conditions 102
8.1 Comparative analysis of ESL pathways 141
12.1 A comparison of the implications of an ESL approach and the
institutional principles of adaptiveness 209
12.2 Pecan production and mining activity in Mexico analysed
through the five major components of telecoupling 217
15.1 Analytical dimensions of Earth system law 273
15.2 Normative dimensions of Earth system law 275
15.3 Transformative pathways and dimensions of Earth system law 280
Contributors
Mike Angstadt is a Research Fellow with the Earth System Governance Project.
He is a teacher and researcher at the nexus of environmental law and envir-
onmental politics. His research explores international law, courts, justice and
politics. He joined the Earth System Governance Research Alliance in 2013
as a Research Fellow and is also a member of the IUCN’s World Commission
on Environmental Law.
Walter F. Baber is in the Earth System Governance Lead Faculty. He is Pro-
fessor in the Environmental Sciences and Policy Program and the Graduate
Center for Public Policy and Administration at California State University,
Long Beach, USA, and a member of the State Bar of California. He also
holds many international environmental research affiliations.
Alice Bleby is a PhD student and Scientia Scholar at the University of New
South Wales, Australia. She is researching the rights of nature as a legal
instrument for protecting the Earth in the Anthropocene. Prior to com-
mencing her PhD, she led the Climate Change Adaptation Policy team in
the Victorian Government Department of Environment, Land, Water and
Planning, Australia. She built her skills in policy and advocacy working
with environment NGOs and youth-led organisations.
Brita Bohman is a Senior Lecturer in Environmental Law in the Faculty of Law
at Stockholm University, Sweden. Her research focuses on international and
European Union environmental law and governance, especially marine gov-
ernance. She is also interested in questions related to the role of law in the
governance of complex environmental problems and legal institutional
design. Her research further investigates broader topics including environ-
mental law and sustainability, the role of law for achieving social-ecological
resilience and adaptivity, and ecosystems-based approaches.
Timothy Cadman is a Senior Research Fellow with the Earth System Gov-
ernance Project and an Associate of its Task Force on Earth System Law.
He is a Research Fellow in the Law Futures Centre and the Institute for
Ethics, Governance and Law at Griffith University, Australia. He specia-
lises in governance of sustainable development, environmental politics and
xiv List of contributors
policy, climate change and natural resource management, including forestry,
responsible investment and institutional performance. He works with com-
munities and governments across the Asia Pacific to develop governance
standards for international projects and programmes.
Elena Cirkovic is a Research Fellow with the Earth System Governance Project
as well as the Helsinki Institute of Sustainability Science (HELSUS), Finland.
She is also a Postdoctoral Researcher in the Aleksanteri Institute – the
Finnish Centre for Russian and East European Studies at the University of
Helsinki, Finland. She is currently leading a project on environmental
degradation in the Earth system and outer space (orbital debris).
Edgar Fernández Fernández is a Research Fellow with the Earth System Gov-
ernance Project, and Associate Researcher at Institut de l’Ouest: Droit et
Europe at the University of Rennes, France. He is a member of the Costa
Rican Bar Association. His current research focuses on the implications of
an Earth system approach for international environmental law. He has over
20 years of research and professional experience on the protection of natural
spaces, land tenure and property rights issues.
Margot Hurlbert is a Senior Research Fellow with the Earth System Governance
Project and an Associate of its Task Force on Earth System Law. She is
Canada Research Chair, Tier 1 Professor in Climate Change, Energy, and
Sustainability Policy at the Johnson-Shoyama Graduate School of Public
Policy, Canada. Her research interests focus on energy, climate change, agri-
culture and water. She has made significant contributions to reports of the
Intergovernmental Panel on Climate Change on Land and Climate, notably
as a Review Editor for the Sixth Assessment Report (AR6).
Gabriel Lopez Porras is a Research Fellow with the Earth System Govern-
ance Project and an environmental social scientist and lawyer with over 10
years’ experience in policy design and environmental litigation. He has
worked as an attorney at the Ecology Directorate in Chihuahua, Mexico,
as a regional coordinator at an environmental law NGO, and as an envir-
onmental project consultant in the private sector. Currently, he is a
Research Fellow in Earth System Law at the University of Lincoln, UK.
His research interests include adaptive governance, socio-ecological sys-
tems, resilience theory, and Earth system law.
Paulo Magalhães is a Jurist and Researcher at the Center for Legal and
Economic Research at the University of Porto, Portugal. He is founder
and president of Common Home of Humanity and proposes a new
global legal framework, based on new knowledge about the functioning
of the Earth system.
Maciej Nyka is Associate Professor at Gdansk University, Poland. His main
area of research is environmental law and economic law, especially the
legal perspective on the use of economic instruments of environmental
List of contributors xv
protection, marine environment protection law and international economic
law. He is the author of over 70 articles, chapters and books published in
Poland, Germany, Slovakia, Great Britain and Ukraine. He is a member of
various research societies, including the European Environmental Law
Forum and the International Law Association.
Andrea C. Simonelli is Assistant Professor of Political Science at Virginia
Commonwealth University, USA, and founder of Adaptation Strategies
International (ASI). She is a speaker for the Climate Voices Network, an
expert for the Climate and Development Knowledge Network, a member
of the Human Rights and Climate Change Working Group, an Associate
with the Millennium Alliance for Humanity and the Biosphere, an external
expert and consultant for the French National Research Agency and the
European Cooperation in Science and Technology.
Rosalind Warner is a Research Fellow with the Earth System Governance
Project and Continuing College Professor in Political Science at Okanagan
College, Kelowna, Canada. She has researched and published on topics
such as ecological modernisation, global environmental governance
issues, protected areas governance in North America, environmental
discourses, global disaster risk reduction in Canadian foreign policy,
and environment and trade in Canadian foreign policy.
Foreword
Frank Biermann
Utrecht University, the Netherlands
Founding Chair, Earth System Governance Project
Preface
This volume is a stand-alone investigation of the current state of law and its
future potential, in the context of planetary perturbations created by humans. It
has arisen from, but is not confined to, scholars who are part of the international
Earth System Governance Project. As humanity confronts climate change, bio-
diversity loss, melting icebergs, sea-level rise, droughts, fires and floods, it has
become clear that the thresholds of many inter-related planetary-level functions
(or Earth systems) have been crossed. This has major implications for nation-
states, which have previously seen themselves as sovereign entities within their
own borders, and have dealt with legal, national, and transboundary challenges
largely in that capacity. Earth system law is a new frontier of law and legal stu-
dies, which seeks to move beyond contemporary notions of environmental law. It
advances an analytical, normative and transformative approach, which recog-
nises that the Earth, and the many systems which sustain it, including, but not
limited to, the atmosphere, the biosphere, the geosphere, the hydrosphere and the
cryosphere, function as a single whole. The book provides new perspectives on
understanding how the traditional practice of law has failed to protect the life-
support systems on which the Earth and its inhabitants depend. From the depths
of the ocean to outer space, this book presents an alternative vision of what is
required to ensure the law remains a relevant, legitimate and effective mechan-
ism for governing human and societal interactions and their impacts on the
planet, in this, the era of the Anthropocene. This work builds on and extends
existing scholarship in this emerging field by providing a series of cutting-edge
investigations into how Earth system law can be understood, the role it should
play in the context of a planet under pressure, and the opportunities it provides
in reshaping the law into a force for good in the light of the changes to come.
Timothy Cadman
Margot Hurlbert
Andrea C. Simonelli
Acknowledgements
The editors would like to recognise the Earth Systems Governance Project and
the Task Force on Earth System Law, both of which provided encouragement
in the early stages of this book’s conception. They also gratefully acknowledge the
financial and logistical support provided by Griffith University, the Arts,
Education and Law group, the Law Futures Centre, and the Institute for
Ethics, Governance and Law. The editors also acknowledge the editorial
contributions of Dr Rosalind Warner and Dr Michelle Lim. Heartfelt thanks go
in particular to Rebecca Marshallsay and Kirrallee Grace for their assistance in
preparing this book for submission to the publisher, and to Routledge, especially
Emily Ross and Hannah Rich, in bringing it to completion.
Acronyms
Background
This work has been four years in the making. Originally conceived in 2017, its
authors first submitted their abstracts in 2018, followed by preliminary essays
in 2019, and completed chapters in 2020. It may seem strange to start this
book with a catalogue of dates, but there is a reason. The World Meteor-
ological Organization (WMO) declared 2016 to be the hottest ever recorded,
taking the world into what it called ‘unchartered territory’ (World Meteor-
ological Organization, 2017). In the same year, and again in 2017, Australia’s
Great Barrier Reef suffered two catastrophic bleaching events, followed by a
third in 2020; in five years, half of the shallow water corals of the reef were
dead and scientists had declared the ecosystem in danger of imminent col-
lapse (Cockburn, 2020; Dietzel et al., 2020; Hughes et al., 2018). Despite an
apparent reprieve, due to a La Niña cooling of the ocean’s surface as part of
the broader El Niño Southern Oscillation (ENSO) climate pattern, 2020 was
also one of the world’s hottest years on record; the previous five years were
the warmest in recorded history (World Meteorological Organization, 2020),
in a decade with the highest global temperatures ever documented (Blunden
and Arndt, 2020). Since the Earth’s climate is a dynamic system, it is affected
by the interactions between the atmosphere, the hydrosphere, the cryosphere,
the lithosphere and the biosphere (Pörtner et al., 2019). As such, whatever
policy decisions are made to combat anthropogenic climate change, good or
ill, will take decades to come into effect, due to inertia in the system – physi-
cal, not political: that is another discussion altogether (Boston et al., 2011;
Hansen et al., 2013). The fate of the planet will be locked in, forcing future
generations to make choices about circumstances over which they will have
no control, while those who were responsible will be long gone – and where is
the justice in that?
That multiple planetary-level interactions might function collectively as a
single system has been theorised since ancient times. But Earth system science
remained relatively unknown as a discipline until the 1970s, when James
Lovelock reworked the age-old stories of Greek mythology into his Gaia
hypothesis, subsequently sparking a rethink about global environmental
DOI: 10.4324/9781003198437-1
2 Timothy Cadman
politics, and climate change in particular (Litfin, 2005). Legal scholars also
began to examine the idea that nature had rights, and such terms as Earth jur-
isprudence and wild law started to appear in the literature (Murray, 2014). The
term Earth systems law (plural) may be traced to a work published as early as
1995, exploring the relationship between humans, nature and modern society
(Bosselmann, 1995). However, the relationship between Earth system science
and international environmental law seems to have come much later, in a paper
of 2014, arguing that international agreements should reflect the complex adap-
tive systems of the Earth, if they are to avoid the fragmentation common in
environmental policy (Kim and Mackey, 2014). The first occurrence of Earth
system law (ESL, singular) appears to be in an editorial of the Review of Eur-
opean Community & International Environmental Law in 2015, commenting on a
paper advocating for ecological integrity as a basis for international environ-
mental law, but not in the paper itself (Kim and Bosselmann, 2015; van Asselt,
2015). In 2017, the Earth System Governance Project (ESGP), one of the leading
international academic networks exploring the interactions between governance
and global environmental change, established the Taskforce on Earth Systems
Law ‘to explore novel legal developments in and for the Anthropocene, where
the Earth as a whole is now seen to have become a socio-ecological system’
(Earth System Governance Project, n.d.a). By 2019, the first academic
paper referring specifically to ESL and the Anthropocene in its title had been
published, heralding a new era in legal scholarship (Kotzé and Kim, 2019).
Source: This table represents the outcomes of a mediated conversation as part of a workshop
chaired by Peter Lawrence of the University of Tasmania, during the course of the 2017 Lund
Conference on Earth System Governance (ESG).
References
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Meteorological Society, 101, S1–S429.
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land, ME: RSVP Publishers.
10 Timothy Cadman
Boston, J., Milne, M.J.. and Lempp, F. 2011. Climate change. Accounting, Auditing &
Accountability Journal, 24, 1000–1021.
Cockburn, H. 2020. Climate crisis: Australia’s Great Barrier Reef has lost half its corals
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2100. Lexington, KY: University Press of Kentucky.
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Part I
Mapping the contours of Earth
system law
This Part describes the development of ESL, the contributions in the book,
and the main features and tensions of this emerging discipline.
DOI: 10.4324/9781003198437-2
2 Dimensions and definitions, signposts
and silos in Earth system law
Timothy Cadman, Margot Hurlbert and Andrea C.
Simonelli
Introduction
In Chapter 1, Timothy Cadman provided the background of the book, its
scholarly underpinnings, and a walk through its themes. This chapter will dive
deeper into the unique research lens of Earth system law, but in order to do
so, there are several points of contention to reconcile. First are the analytical,
normative, and transformative dimensions of ESL. Conventional legal think-
ing has sought protections for individual species and humans against one
another, but the challenge of climate change and its cascading impacts
across all sectors at once are beyond what remedies exist. The authors of
this volume have tried to reconcile this through the dimensions in ESL, and
how these contend with traditional legal thinking, as well as the demands of
the Anthropocene. Building on Table 1.1 in Chapter 1, the first section of
this chapter examines how the authors answer the questions posed in the left
column of that table. The chapter proceeds with a systematic overview of the
main concepts used in the book and the variation in their usage by both the
authors of this book and the field. Finally, the chapter concludes with a discus-
sion of the right column of Table 1.1 and if or how the authors have provided a
path forward based on which questions could be answered, which could not, and
what kind of signposts are left for guidance.
Dimensions
Analytical
In Chapter 3, Baber addresses the analytical question of how ESL is envisioned
in society. He explains this as a vision of environmental rights opportunity
structures. These would be a configuration of social, political, and legal com-
ponents which are supportive of civil society’s role in environmental decision
making. These can be accomplished in several ways: through participation in
legislation and/or regulation, but additionally through litigation to enforce
these. Civil society plays an important role in supporting environmental rights
and thus, opening up more rigid structures to outside actors with critical
DOI: 10.4324/9781003198437-3
16 T. Cadman, M. Hurlbert and A.C. Simonelli
interests will help take action. ESL seeks to guide practice through its recom-
mendations; this is how Angstadt in Chapter 4 answers how it will deal with
the static and anthropogenic nature of law and lawyers. ESL should incorpo-
rate international relations and international law insights by guiding the design
of new systems that are less reductive. The Anthropocene challenges statist
thinking, but this is only one facet of traditional International Relations (IR).
Cooperation through norm diffusion is better equipped to move past the
shortcomings of the prior state-centric approach. In order to do any of this, it is
important to be clear about the collective understanding of ESL. As it is still
new, developing, and not yet mainstream, it is easy for authors to talk past
each other if they are not clear about the topic. While each author’s definition
is in line with the generalised ESL concept from the nascent field, in Chapter 5,
Fernández Fernández best explains what this is for those readers who may be
new to it. He explains how ESL transcends the usual linear and sectoral
approach to environmental law. ESL is about finding ways to maintain the
state of the Earth system that can sustain human society. This, in turn, will
preserve other natural variability ranges of support systems, including non-
linear processes and regulatory activities. While the focus of humans can tend
to be inwards, the same systems that support humans also support the Earth’s
flora and fauna. Keeping that in mind, it is through the frameworks of power
and justice that Hurlbert argues, in Chapter 6, that we would inform ESL. In
order to reform previous static systems, old conceptions of such things like
power and justice have to be reapplied beyond human activities towards other
humans. As Hurlbert explains, integrating constructivist approaches can expose
power differentials (between how humans treat Earth’s systems and each other).
For real change, what is also needed is the praxis of agency and transforma-
tion. These frameworks are theoretical and methodological, but both are
needed to inform ESL. While theory provides the backbone, methodology is
the how or the toolkit for getting things accomplished.
Normative
In the normative vein of understanding, one major consideration for ESL is
how to address inequality. There are pervasive hierarchies among species,
geographical regions, countries, and across generations, which have posed a
huge obstacle to systems thinking and actions. In Chapter 8, Warner addres-
ses this by suggesting that increasing synergies between diverse regimes is the
key to both addressing the role of non-humans in law and for instigating
transformational changes. This is imperative for global policies and local
practice. In order for Earth systems and non-humans to gain any legal
standing and consideration within the current organisation of legal values and
political priorities, there needs to be international consensus. Lack of full
international consensus is what already makes it hard to implement United
Nations treaties, argues Simonelli, in Chapter 10. It is often large or powerful
nations which bully smaller nations into watered-down treaties or derail
Dimensions and definitions in ESL 17
stronger language when it comes to environmental protections. It may be that
some country sub-units need to act independently and engage in participation
beyond their national borders. National borders will also be challenged by the
natural migration of flora and fauna as the Anthropocene brings a shift in
where resources will be located, as well as displacing people and culturally
important items. These can be considered invasive in some areas, but essential
in others, how then can ESL ensure the sustainability of such resources – or
any resources – as a way of keeping them from either their destruction or
over-exploitation, directing or redirecting investment? In Chapter 7, Bleby
provides normative solutions, such as extending the application of legal per-
sonhood to such items. In this way, they can be protected for their impact on
society and ecosystems independently. This would necessitate further ela-
boration through ESL principles and the rights of nature doctrine. As
Bohman explains in Chapter 9, the Earth system is interconnected and is an
interdependent social-ecological system with local variation and social varia-
tion. This description of the Anthropocene acknowledges the diversity of
local and regional contexts as well as the distribution of resources. These
connections are not static and will not only morph over time, but also include
the distribution of environmental harm as well. The problem at hand is at
different scales: this is what makes sustainability and inequality so difficult;
there are interconnections, but also disparities.
Transformative
In order to combat these normative challenges, ESL should develop trans-
formative paths forward. What these will look like depends on the challenges
that the authors here consider. In Chapter 13, Nyka thinks about this using a
vision of environmental justice. However, this cannot remain the same as it
has until now; it needs to be rooted in sustainable development, ecosystem
services, and the law overcoming the selfishness of the human species. Similar
to the differing time scales of change as mentioned in the normative section,
transformation can only occur if intra-generational justice is also distribu-
tional, which necessitates the appropriate financial mechanisms. Beyond the
human centricity of multi-generational justice, another transformative path is
Cirkovic’s discussion in Chapter 11 of cosmolegality which extends the
agency of non-humans, but independently, not on human terms. This means
that human laws need to recognise that the phenomena of climate change do
not have a predictable outcome, the Anthropocene has ensured this. However,
human laws need to be adjusted for more than this; there have already been
areas which come under governance which were never hospitable to human
life, such as the sea and the upper atmosphere/space. Taking these issues ser-
iously is what could lead to more adaptive legal systems which, in turn, would
serve as a transformational concept for ESL in the Anthropocene. Magalhães
argues in Chapter 14 that it is through being unrealistic that scholars come
closest to the most realistic way of looking at the future of humanity.
18 T. Cadman, M. Hurlbert and A.C. Simonelli
Transformation begets actually doing things differently. This means employing
community concepts such as the global commons, common interests, common
heritage rather than simply discussing them. Doing this within legal systems
looks like opening them to civil society involvement, argues Lopez Porras, in
Chapter 12, using Mexican water law. He identifies institutional tools and
mechanisms to increase adaptiveness and system regulation for the cause of
justice. Finding such space in other environmental laws is a first step to system
transformation.
The Anthropocene
This book initially posits that humanity is standing on the precipice of the
Anthropocene; however, the edge of the Anthropocene has not been clearly
defined. How close is it? Social sciences, including ESL, have tended to be
vague about it, focusing on the effects of climate change while the natural sci-
ences have provided several examples as to where/when the Anthropocene
begins. Dryzek uses Cutzen’s definition in his discussion about governance in a
changing Earth system (Dryzek, 2016). Cutzen defines the Anthropocene as
first being intimated in evidence of rising carbon dioxide and methane levels in
the atmosphere in the mid-eighteenth century, thus arguing that humans have
been living in the Anthropocene without knowing it. Biermann explains the
Anthropocene as a political, global phenomenon and provides five ways in
which it is so (Biermann, 2014). However, he never clarifies when the Anthro-
pocene began, would begin, if it had, or when humanity should be ready for it.
Even Burch et al. define the Anthropocene as one of their main frameworks for
contextual conditions for Earth system governance (ESG) research and then do
not define it (Burch et al., 2019). The authors, like Biermann, either assume
Dimensions and definitions in ESL 19
that other readers of Earth systems already can define the epoch like Dryzek or
completely take for granted climate change as the way that humans have
brought about the Anthropocene. The authors of the current volume reflect
this, with the exception of Simonelli, who provides a brief discussion of the
natural sciences definition(s). The natural sciences suggest nine events
which could be empirically argued to be the starting point of the
Anthropocene: (1) the extinction of megafauna; (2) the origin of farming;
(3) extensive farming; (4) rice production; (5) anthropogenic soils; (6)
New/Old World collision; (7) the Industrial Revolution; (8) nuclear
weapon detonation; and (9) persistent industrial chemicals (Lewis and
Maslin, 2015). Each represents a major event in human history and pre-
history and made their impact on stratigraphic records. The first five took
place well before modernity, from 50,000 to 500 years in the past. Lewis
and Maslin argue that only two events provide clearly global synchronous geo-
logical markers on an annual or decadal scale: one is a dip in CO2 (the Orbis
spike) around 1610 and the other the 1946 bomb spike (ibid.). The Orbis spike
implies that colonialism, global trade and coal brought about the Anthropocene
(ibid.). Each of these is different but interconnected. The rise of the imperial
powers brought about global trade and the push for efficiency in this (for the
sake of competition) is what has brought the Anthropocene. However, choosing
the bomb spike tells a story of an elite-driven technological development that
threatens planet-wide destruction. The long-term advance of technology
deployed to kill people, from spears to nuclear weapons, highlights the more
general problem of progress (ibid.). This tells a more sinister story of the
Anthropocene but is no less a story of the insatiable drive of humans to control
each other at the expense of all else.
In relation to justice and law, does the exact moment of this precipice
matter? Each of these moments has a corresponding governance structure; for
Cutzen’s description and for the Orbis spike, it was imperial law, for the bomb
spike, it was the modern democratic era, but just before the institutionalisa-
tion of human rights laws, and even the extinction of the megafauna would
have happened under customary law. None of these systems had yet perceived
or conceived of the impact that humans would have on Earth systems and
would treat their domains as static. It wasn’t until after the Second World
War and after seeing its full impact that human rights and the international
cooperation which ensured them were taken seriously. A systems law per-
spective has been lacking in each precipice moment because no group of
globally powerful humans has never seen themselves as a part of the world
they inhabit. The laws of the imperial age were to keep power concentrated in
each nation’s sovereign leadership, usually a monarch. From then until the
nuclear age, states functioned in competition with one another for land,
dominance and control. The system their laws catered to was based on how
they constructed their presence through international anarchy; fighting each
other’s sovereignty through property and territorial rights demonstrated that
their own existence depended on mutual recognition (Wendt, 1992). The drive
20 T. Cadman, M. Hurlbert and A.C. Simonelli
to secure one’s state was to the detriment of others. It has only been recently,
through the impending changes fuelled by global warming, that some
countries have been willing to rethink their role and responsibility towards
one another. In this sense, the precipice bringing about Earth systems
thinking has been the modern realisation that the Anthropocene exists due
to climate change.
How can the fundamen- How are conflicts between adaptiveness and the rule
tally static, and anthro- of law negotiated, framed and resolved? Which his-
pocentric nature of law toric rules of law need to be addressed? Which need to
and lawyers be dealt remain?
with?
Current law is not particularly adaptive but can be
improved through norm diffusion and expansion.
Historic understandings of the commons, non-human
agency, non-human migration, and ecocentrism need to be
addressed.
Can we stretch existing law or do we need to create new
law?
It is necessary to stretch existing law but new law will also
be essential.
How can the memes of How is ESL in society to be envisioned? What is the
ESL be translated to a socio-legal-Earth relation? What about local
wider audience? (common) law and global law? Or nation-state law,
and soft international law?
An ESL society is envisioned through authors’ use of sub-
disciplines; a next step would be a full reimagining of the
socio-legal-Earth relation.
Lopez Porras provides specific suggestions through a case
study, Circovik integrates Indigenous thinking and cosmo-
legal space, and Simonelli suggests how to overhaul inter-
governmental decision-making.
26 T. Cadman, M. Hurlbert and A.C. Simonelli
Analytical dimensions of ESL
Which theoretical and Is a jurisprudential analysis of ESL enough, or is a
methodological frame- post-structural analysis of the experience of law
works should inform required, i.e., a body of living law – and what are the
ESL? narratives or discourses of law in the context of ESL?
There is a gap between existing legal analysis and the
experience of law; Hurlbert explains this challenge as the
ability to extend them to document, explore, imagine and
advance Earth system laws’ transformations.
Can ESL be analysed on the basis of conflict, power,
hegemony and social class, or must these concepts be
refined or expanded?
ESL can be analysed through imagining how power, hege-
mony and social class would impact the nation-state and
international realm. Refining these is important in making
a practical systemic overhaul.
References
Biermann, F. 2014. The Anthropocene: A governance perspective. The Anthropocene
Review, 1, 57–61.
Breakey, H., Cadman, T. and Sampford, C. 2016. Governance values and institutional
integrity. In T. Cadman, R. Maguire and C. Sampford (eds), Governing the Climate
Change Regime. New York: Routledge.
Burch, S., Gupta, A., Inoue, C. Y., Kalfagianni, A., Persson, Å., Gerlak, A. K., Ishii,
A., Patterson, J., Pickering, J. and Scobie, M. 2019. New directions in Earth system
governance research. Earth System Governance, 1, 100006.
Dr. Seuss. 1971. The Lorax. New York: Random House.
Dryzek, J. S. 2016. Institutions for the Anthropocene: Governance in a changing earth
system. British Journal of Political Science, 46, 937–956.
Finnemore, M. and Sikkink, K. 1998. International norm dynamics and political
change. International Organization, 887–917.
Kaufmann, D., Kraay, A. and Zoido, P. 1999. Governance matters. World Bank Policy
Research Working Paper.
30 T. Cadman, M. Hurlbert and A.C. Simonelli
Krasner, S. D. 1982. Structural causes and regime consequences: Regimes as inter-
vening variables. International Organization, 36(2), 185–205.
Lewis, S. L. and Maslin, M. A. 2015. Defining the Anthropocene. Nature, 519, 171–180.
Litfin, K. 2005. Gaia theory: Intimations for global environmental politics. In P.
Dauvergne (ed.) Handbook of Environmental Politics. Cheltenham: Edward Elgar.
Weiss, T. G. 2000. Governance, good governance and global governance: Conceptual
and actual challenges. Third World Quarterly, 21, 795–814.
Wendt, A. 1992. Anarchy is what states make of it: The social construction of power
politics. International Organization, 46, 391–425.
Part II
The analytical dimensions of
Earth system law
DOI: 10.4324/9781003198437-4
3 Earth system law in the age of
humanity
Walter F. Baber
Introduction
Much ink has been spilt on the concept of the Anthropocene; as of December
5, 2019, a keyword search of Academic Search Complete returns 5,474 cita-
tions since 2010. At its core, this is the idea that the human and non-human
elements of the Earth system have become so completely intertwined that no
change can occur in one without impact on the other (Young et al., 2017).
Insofar as this is true, it imposes a responsibility that humans have never
previously faced – that of determining both their own fate and the fate of all
living things. However, with great responsibility sometimes comes great
opportunity.
If every environmental challenge is now also a human challenge, it may be
that human interests and the interests of the non-human environment are
gradually converging (Baber and Bartlett, 2015). If so, then the protection of
human interests may afford new opportunities to protect the environment – if
humans are astute enough to recognise those opportunities and take advan-
tage of them. Moreover, it stands to reason that, as this convergence con-
tinues, it should be most readily identifiable in the areas of humanity’s most
fundamental and urgent needs – that is to say, in areas that are of central
concern to defenders of human rights (Baber and Bartlett, 2020). What is
needed, then, is an analytical framework that will allow recognition of the
opportunities that this convergence may offer and help map the contours of
those opportunities so that they can be successfully exploited.
This chapter adapts the existing research on legal opportunity structures
(LOS) for cross-cultural use in identifying environmental rights opportunity
structures (EROS). An EROS will be described as a configuration of norma-
tive, socio-political and institutional circumstances that are supportive of civil
society interventions in environmental decision-making through either litigation
or participation in legislative/regulatory processes (see also Bohman’s Chapter 9
in this volume).
While these configurations will vary in each nation state, there is already
evidence to support the assumption that these structures are likely to vary
within recognisable patterns. The rising level of interest in potential synergies
DOI: 10.4324/9781003198437-5
34 Walter F. Baber
between the promotion of human rights and pursuit of the United Nations
Sustainable Development Goals (SDGs) is one such pattern (Knox, 2015).
But perhaps the most dramatic example of EROS at work is the wave of
environmental constitutionalism (EC) that has resulted in the entrenchment
of the right to a clean (or healthy or sustainable) environment in most of the
world’s national constitutions (Boyd, 2012). This chapter will examine the
rising tide of EC within the context of an EROS framework.
If a more systematic and comprehensive analytical framework can be devel-
oped to help explain instances of EC, it may eventually serve as a guide for those
who wish to actually transform EROS patterns through action-oriented research
and research-driven advocacy at the national level. However, at this early stage,
developing the ability to document causal chains that explain environmental
human rights outcomes within Earth system law is paramount. This chapter is
intended to contribute to that development. For illustrative purposes, a brief
constitutional history of contemporary Uganda is provided. The overall objec-
tive is to demonstrate the application of the EROS concept and to show its utility
in organising thinking about environmental rights outcomes.
Introduction
As interlinked environmental and human-social challenges drive demand for
a new legal approach that emphasises Earth’s systems, there is a unique
opportunity to both innovate and reflect. The Anthropocene presents novel
implications and challenges for Earth’s systems (Lewis and Maslin, 2015) and
for its inhabitants and governance (Kashwan et al., 2020). Effective Anthro-
pocene governance that can address the challenges facing Earth’s complex
systems will require new legal responses to the unique epistemic, ontological
and normative aspects and requirements of the natural world and in the light
of emerging and persistent major environmental challenges (Kotzé and Kim,
2019). However, this work can extend existing efforts to craft governance
responses that include a range of scientific disciplines at different spatial and
temporal dimensions (ibid.). The process of articulating a new Earth system
law that can effectively engage with the Anthropocene and its challenges
invites visionary legal approaches. Importantly, it also affords a toehold to
existing social science insights. Many of these, to date, have not widely
informed legal analysis.
This chapter explores how existing disciplinary perspectives can ground
innovative, expansive ideals, presenting the two objectives as complementary.
Its central contention is that the normative, analytical elements of existing
disciplinary perspectives and the practical, applied elements of existing envir-
onmental law approaches together can support an ESL approach offering
academic and applied benefits. First, the chapter suggests that an integrative
ESL would hold academic benefits: (1) helping to align ESL with ongoing,
complementary interdisciplinary efforts to study Earth system governance
(ESG); (2) answering longstanding calls to more clearly integrate International
Relations (IR) and social science theories when studying questions of interna-
tional law; and (3) promoting theoretical and methodological pluralism within
Earth systems research. Second, it suggests that explicitly incorporating insights
from multiple disciplines into ESL would have applied benefits, helping the
emergent field to avoid the critiques of reductionism and state-centrism often
levied against more conventional environmental law.
DOI: 10.4324/9781003198437-6
56 Mike Angstadt
In pursuit of these goals, the chapter first notes the objectives advocated
by those seeking to develop ESL to address Anthropocene challenges, and
it highlights how these emphases align with existing disciplinary insights.
Through this process, it identifies a need to better clarify how new legal
ideas spread and how practitioners within the legal field exchange ideas.
As it notes, both these questions are addressed by existing research within
international relations (IR) and global environmental politics (GEP),
which both examine processes of norm diffusion and judicial globalisation.
After identifying and evaluating some potential interdisciplinary synergies,
the chapter notes how an expansive theoretical foundation will support the
development of ESL. In addition to discussing the academic and applied
benefits outlined above, the chapter notes that this interdisciplinary
approach will emphasise process in ESL, participation in ESL, and pro-
pagation of ESL. In conclusion, the chapter suggests that using existing
theoretical insights enables those advancing an ESL approach to illustrate
how legal scholarship can be rendered more interdisciplinary.
Norm diffusion
A central challenge to the emergent ESL approach is that its ultimate success
will require both creative conceptualisation and effective promotion and
implementation. While ESL may effectively address issues that the current legal
frameworks cannot resolve, it also contests many entrenched approaches,
questions longstanding structures, and is therefore likely to encounter resis-
tance. Accordingly, effectively operationalising ESL will require its advocates to
consider how new concepts and paradigms gain acceptance and propagate.
This question has received extensive attention from IR and IL scholars alike. In
particular, IR scholars examine norms, which researchers commonly define as
standards, as the appropriate behavioural characteristics of a given set of actors
with a known identity (Finnemore and Sikkink, 1998). Among the norms sur-
veyed by IR scholars, one class of what are seen as constitutive norms emphasises
efforts that result in novel actors, interests, or types of action (ibid.). While norms
dynamics have received widespread attention throughout the IR literature, they
have received particular attention from social constructivist scholars (Hoffmann,
2010), who widely examine how norms shape responses to broad environmental
challenges. While some existing scholarship examines how norms drive broad
structural changes (see Ovodenko and Keohane, 2012), GEP researchers have
also applied the concept to discrete environmental issues and responses, including
climate change (Betsill and Bulkeley, 2004). Attention to norms and their diffu-
sion is similarly widespread among IL scholars, including in research exploring
international environmental law (Parks and Morgera, 2015). Therefore, IR and
IL research can collectively support the development and spread of ESL.
60 Mike Angstadt
Given that environmental norms have been examined from both IL and IR
perspectives, many existing insights are available to architects of ESL. In
particular, scholars have generated valuable insights regarding the practices of
norm contestation, the role of norm entrepreneurs, and the processes that
advance normative implementation. First, researchers have explored how new
norms emerge and conflict with existing norms. This process of norm con-
testation emphasises the interactive nature and evolutive processes that guide
normative development (Finnemore and Sikkink, 1998). As a result, those
advocating new norms have to consider whether to comport with or contra-
vene existing practices and understandings. Questions of norm contestation
have been widely examined within the human rights context, where rights-
based obligations are rapidly evolving and frequently in conflict (see Welsh,
2013). However, many environmental issues, including damming and hydro-
power, lead to contestation and questions of knowledge and power (Hensen-
gerth, 2015). Similarly, the global nature of normative negotiation creates
tension between differing approaches and regional contexts (Bernstein and
Cashore, 2012). ESL may well conflict with existing legal structures but also
provide an opportunity to rethink and re-form existing insights.
In addition to attention to norm contestation, scholars have sought to
understand the contributions of norm entrepreneurs (Finnemore and Sikkink,
1998). These agents of change have proven instrumental in advancing new
approaches in diverse issue domains. Existing research emphasises that the
identity of norm entrepreneurs can vary widely and includes individual, gov-
ernmental, and institutional actors. Scholars have emphasised the important
role of epistemic communities of individual experts who mediate and promote
authoritative information (Haas, 1989), have documented international norm
entrepreneurship by national governments (Ingebritsen, 2002), and have high-
lighted how institutional actor classes, including international financial institu-
tions, contribute to norm entrepreneurship (Park, 2005). Both individual and
institutional actors underscore how perceptions of legitimacy and power
dynamics empower certain actors, vesting them with greater success in advan-
cing new norms (Okereke, 2008). It also reaffirms that environmental norms,
like norms in IR more broadly, diffuse through intentional efforts; this process
raises important equity concerns regarding who is promoting normative con-
tent and how (ibid.). Therefore, as ESL develops as a theoretical, normative,
and analytical construct, existing literature counsels that its advocates must
remain mindful of power dynamics, inclusivity, and justice/equity dimensions
that will influence who can help to define and promote the new ideas.
Finally, GEP scholars have examined how new ideas gain acceptance and
implementation in the governance landscape. This ultimate step for new
norms follows their emergence and spread, and it signals a point of such
general acceptance that conformity becomes almost automatic (Finnemore
and Sikkink, 1998). Norm implementation entrenches new norms that them-
selves become difficult to unseat, and a period of more uniform state practice
follows (ibid.). The norm implementation literature demonstrates how norms
International Relations and ESL 61
are frequently operationalised through interaction with, and incorporation
into, formal state structures. This avenue of analysis is particularly relevant to
ESL scholars, who are ultimately interested in supplanting the existing legal
architecture with new approaches. Existing insights derive from GEP and IL
researchers alike, since many environmental norms (Clapp and Swanston,
2009) and legal norms have been entrenched within domestic settings. IL
scholars have examined how international legal norms and the international
rule of law gain traction as IL is applied within domestic contexts (Kumm,
2003). In turn, they show that domestic courts and institutions help to
develop and operationalise norms in a global context (Tzanakopoulos and
Tams, 2013). As ESL principles emerge, this existing scholarship can help
researchers better understand how extant institutions will shape the success of
new ideas.
Ultimately, norm diffusion scholarship, as conducted by both IR and IL
scholars, provides a strong foundation to inform the development and pro-
pagation of new normative content that can advance the ambitions of ESL
scholarship. At the same time, emphasising norms and the mechanisms by
which they propagate can obscure similarly important questions regarding the
individuals and actors who promote and develop new ideas. Therefore, ESL
researchers should also explore existing literature considering the actors who
shape and drive new ideas.
Judicial globalisation
Alongside normative scholarship, an extensive literature has explored how
actors interact and exchange ideas across institutional, political, and geo-
graphic contexts. In particular, researchers have evaluated how domestic
practitioners can contribute to the development and institutionalisation of
new ideas. These questions are richly explored in a body of IL literature
examining the process of judicial globalisation and the emergence of a global
community of courts.
Beginning in the mid-1990s, researchers began to emphasise that IL was not
simply a creation of international institutions, but rather a dynamic and inter-
active medium that also took form through interactions and contributions of
domestic actors. Much of this scholarship emphasises the important role of
interactions among judges (Slaughter, 1999). Among multiple identified
mechanisms for judicial interaction, two appear particularly relevant to ESL: (1)
constitutional cross-fertilisation, where courts in one jurisdiction seek guidance
on and insight into the opinions of courts in other political jurisdictions
(Slaughter, 1999); and (2) workshops, conferences, and in-person meetings,
enabling judges across jurisdictions to exchange and align practices (ibid.).
Researchers suggest that domestic courts increasingly perceive they have a
role as transnational actors of IL, mediating the boundaries between domestic
and international norms and practices (Waters, 2004). These practices have
been widely documented in the environmental realm, where multiple indicia
62 Mike Angstadt
of such exchanges exist. For instance, many leading-edge domestic legal opinions
directly cite those set forth in other jurisdictions. One example of this practice
was the pathbreaking Oposa v. Factoran (1993) opinion, which catalysed sub-
sequent effort. These include, as the International Union for Conservation of
Nature (IUCN) notes, efforts to advance climate trust litigation in the United
States through the widely followed Juliana v. United States (2019) litigation.
Individually, these rulings provide toeholds of persuasive authority to translate
ideas across legal systems; collectively, the exchanges foster a more global
environmental jurisprudence.
As legal norms and concepts spread through domestic judicial opinions, in-
person exchanges have also permitted dialogue between environmental judges
and practitioners. Key ongoing examples include the Asian Judges Network
for the Environment, the European Union Forum of Judges for the Environ-
ment, and the Association of Southeast Asian Nations’ Chief Justices’
Roundtables on the Environment. Additionally, in 2018, the IUCN’s World
Commission on Environmental Law convened a Global Judicial Institute on
the Environment (GJIE) (World Commission on Environmental Law 2020).
The GJIE is explicitly tasked with the objective of providing ‘opportunities to
exchange information, create partnerships for collaboration, strengthen capa-
city, and provide research and analysis on topics important for environmental
adjudication, court practices, and the environmental rule of law’ (ibid.).
Finally, many environmental nongovernmental and intergovernmental orga-
nisations actively promote information exchange among legal practitioners. In
one particularly clear example, the United Nations Environment Programme
(UNEP) has facilitated interactions between countries with established specialist
environmental courts and those countries which are considering them. For
countries contemplating innovative legal structures or practices, these mediated
interactions can offer domestic governmental employees’ access to insights and
best practices guidance from sister jurisdictions.
The foregoing examples (referencing legal opinions from other jurisdictions,
sharing insights through conferences and networks, and drawing upon mediated
exchanges) collectively reflect widespread interest in a more cosmopolitan legal
approach to the environment. Furthermore, these trends appear to reflect pro-
cesses described by judicial globalisation scholars in other issue areas and those
envisioned by ESL scholars. Just as ESL scholars envision a reshaped global
community, established scholarship emphasises ways that emergent changes to
dominant legal structures may be amplified, accelerated, and leveraged; judges,
like the litigants and lawyers before them, are beginning to understand that they
function in a wider world (Slaughter, 1999).
Conclusion
The emergence of ESL as a normative, discursive, and analytical framework pro-
vides a unique opportunity to reconsider how conventional legal approaches
address systemic environmental challenges. As scholars demonstrate, environ-
mental law offers an incomplete response to the scope and scale of contemporary
challenges, given its specialisation, deeply anthropocentric nature, and relative iso-
lation from other disciplines. Simultaneously, researchers urge the importance of
innovative, systemic responses that are theoretically robust and practice-relevant.
While scholars’ positionality within the dominant, human-oriented paradigm
complicates efforts to envision a new approach, ESL joins other efforts in seeking
to advance a more holistic and equitable systems approach.
As this chapter argues, efforts to envision a new approach can benefit from
attention to existing disciplinary insights. Researchers in IR and IL have
explored questions that complement many stated objectives of ESL’s pro-
posed analyses and responses. For instance, IR-based norm scholarship
demonstrates that new ideas can spread and contest dominant approaches,
particularly when they are advocated by norm entrepreneurs, and that this
process of norm diffusion can lead new ideas to cascade across jurisdictions
and secure implementation. Similarly, interdisciplinary scholarship examining
judicial globalisation indicates that legal actors, including domestic judges,
can contribute actively and enthusiastically to exchanges. Each of these
existing bodies of literature speaks to important themes and questions within
ESL, including how new approaches might spread and gain acceptance.
Beyond aiding the scholarly and applied objectives of ESL, incorporating
IR and IL insights into new approaches offers multiple benefits. As this
chapter notes, leveraging IR and IL would advance interdisciplinary objec-
tives in broader Earth system scholarship, help to reduce artificial barriers
separating existing disciplines, and support theoretically and methodologically
pluralist scholarship. The existing literature directly facilitates this effort
through attention to relevant questions and development of practice-relevant
theory. In short, there are numerous benefits of looking back and acknowl-
edging existing insight as researchers seek to look forward to new approaches.
How, then, might these objectives best be advanced? The ESL initiative would
benefit from concerted efforts to foster theoretically explicit contributions,
embrace diversity, and encourage practitioner input.
International Relations and ESL 67
First, as ESL seeks to rectify specific perceived shortcomings with existing
legal structures, it should seek to do so in as theoretically explicit and precise a
fashion as possible. The initiative is certain to engender new approaches, views,
and architectures. However, rooting these, wherever possible, in well-established
theoretical understandings will help scholars to convey their expectations and
reasoning with one another. Additionally, generally accepted theoretical
framings and plain language can promote clarity, comprehensibility, and
precision in new analytical terrain.
Second, as ESL pursues a revolutionary legal frontier, it should be pur-
poseful in its efforts to embrace diversity and the benefits of including
insights from diverse peoples, geographic regions, and theoretical traditions.
While both IL and IR have historically been criticised for a lack of diversity
(Hoffmann, 1995), both have increasingly sought to incorporate the
vibrancy and benefits of diverse perspectives (Coombe, 2001). Similar
objectives are widely articulated in the ESG community (Biermann and
Gupta, 2011). However, the current structure of the community presents the
potential for fragmentation and isolation: ESL is currently explored only by
a focused community of researchers in a task force (ESG, n.d.). As interest
surrounding ESL increases and the subject receives more mainstream atten-
tion among ESG scholars, the initiative should embrace – and its advocates
should actively solicit –input from participants throughout the community,
within and among disciplines, and across researcher backgrounds. Doing so
will advance an effort that is coloured by non-legal disciplinary perspectives,
informed by diverse world-views, and best equipped to fulfil its articulated
objectives.
Third, ESL should actively pursue engagement and exchange with
practitioners. Just as IR and IL have fundamentally pursued insights that
bear practice relevance, this initiative seeks, at its core, to reshape existing
legal structures and practices in fundamental ways. For this to occur, the
insights of practitioners from within dominant systems can help to under-
stand what works well, what does not, and how new ideas can be made
meaningful to those beyond academia. Just as ESG scholars have advo-
cated more active incorporation of practitioner perspectives (Biermann et
al., 2019), ESL must embrace these insights. Moreover, scholars should
remain mindful of the ultimate objective of practice relevance in their
work, particularly when examining existing theoretical approaches. As
ESL develops and evolves, its analysts can intentionally consider and
articulate how the insights of theory can be leveraged to inform practice
and remain accessible to non-academics.
Collectively, these three recommendations (pursuing theoretical precision,
advocating for diverse engagement, and seeking practitioner input and prac-
tice relevance) are closely linked with the broader objective of grounding ESL
in existing disciplinary insights. Together, these efforts can support the objec-
tives, enthusiasm, and promise surrounding the emergent approach, and they
can promote a vibrant, inclusive research effort.
68 Mike Angstadt
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5 An Earth system science-based
perspective
A foundational feature of Earth system law
Edgar Fernández Fernández
Introduction
As a concept, Earth systems law (ESL) is in its initial stages of construction.
Scholars are still at the point of making proposals and debating about what
can fit into it. However, at this stage of its development, one feature that can
already be clearly identified is that the emergence of this so far undefined
concept has been largely influenced, consciously or unconsciously, by a per-
spective grounded on insights from Earth system science, hereinafter the
Earth system perspective.
First, it is necessary to recall that the Earth System Governance Project
(ESGP) originated in the framework of the Earth System Science Partnership
(ESSP), and more specifically as part of one of the four international global
change programmes that composed the ESSP: the International Human
Dimensions Programme on Global Environmental Change (IHDP). The ESGP
was the social sciences response to the ESSP initiative aimed at developing an
ethical and strategic framework for global stewardship and management of the
Earth system management (Biermann, 2007).
An Earth system science perspective was already at the core of the concept of
Earth system governance (ESG) that was introduced in the first Science and
Implementation Plan of the Earth System Governance Project (Biermann et al.,
2009). This perspective was implicitly expressed through the concept of Earth
system transformation, used to describe the influence of human activity on the
planet’s biological, geological and chemical systems, and including the possibi-
lity of fundamental and irreversible change in these systems (ibid.). Earth system
transformation was a central element of the definition of ESG, defined as:
DOI: 10.4324/9781003198437-7
An Earth system science-based perspective 73
Second, several concepts that emerged from progress on Earth system science,
like the Anthropocene, planetary boundaries and the safe operating space for
humanity, have inspired legal scholars and served as entry points for them to
question the adequacy of contemporary law, mostly international and inter-
national environmental law, to the new realities and challenges associated
with human-caused global changes. The emergence of the concept of ESL
stems in great part from such reflections, e.g., on the implications of the
Anthropocene and planetary boundaries for international law and policy for
social-ecological security (Ebbesson, 2014); on how to rethink global envir-
onmental law and governance as a result of the Anthropocene (Kotzé, 2014);
and on how environmental law and governance could be reimagined to better
mediate the human environment interface in the Anthropocene (Kotzé, 2017).
Along the same lines (and see Chapter 14 in this volume by Magalhães),
Magalhães presents different legal perspectives on contributing to keep the
Earth system in a Holocene-like state (Magalhães, 2016b), such as those of an
Earth-centred law and governance (Bosselmann, 2016); possible legal tools to
operationalise a new Anthropocene environmental law (Aragão, 2016); the
recognition of the Earth system as a UNESCO Natural Intangible Endan-
gered Heritage; the transformation of the United Nations Trusteeship Council
for the purpose of governing and managing the whole Earth system (Chandra
Gautan, 2016); an Earth condominium as a legal model for the Anthro-
pocene (Magalhães, 2016a), and a proposal for a Safe Operating Space of
Humankind Treaty (Magalhães, 2016b). Similar reflections have led to other
proposals such as a declaration on planetary boundaries (The Planetary
Boundaries Initiative, 2011) and a framework convention on planetary
boundaries (Fernández Fernández and Malwé, 2017).
A general initial conclusion of legal scholars engaging in this new
research field is the mismatch or inadequacy of international environmental
law to the challenges posed by the capacity of humans to provoke changes
in key processes for the functioning of the Earth system. In this line of
thought, Stephens (2019) points out the need for international environ-
mental law research to turn its attention to the insights provided by Earth
system science and by the ESG literature and, on this basis, to re-examine
and reimagine international environmental law’s objectives.
This chapter examines the importance of considering Earth system science as
a foundational feature of ESL. It first identifies the main insights and paradigms
that have emerged from, or are being confirmed by, Earth system science, parti-
cularly related to the understanding of the way the Earth functions as a whole,
the extent of which humans have already altered and how much they could
continue to modify the functioning of the Earth system, and the possible con-
sequences of such human-caused changes. It then contrasts the elements of this
Earth system perspective with some features of contemporary law in order to
assess the integration (or not) of this perspective into contemporary law. It con-
cludes by highlighting the interests that such integration may have and by
describing what some characteristics of the resulting ESL might look like.
74 Edgar Fernández Fernández
Earth system science: a new scientific domain source of new paradigms
In 1986, NASA published the seminal report, which established an agenda for
Earth system research. The same year, the International Council for Science
(ICSU) launched the International Geosphere-Biosphere Programme (IGBP)
with the intention of describing and understanding the various physical, chemi-
cal and biological processes regulating the Earth system, its environmental
attributes and the changes occurring within it, and the extent to which these were
influenced by human activity (NASA Advisory Council, 1988).
Thanks, among others, to the extraordinary scientific progress that makes it
possible to monitor the planet, by both remote sensing and in-situ measure-
ments, and to run complex data models, Earth system science was able to
emerge as a new scientific domain for studying the Earth system as a whole,
leading the way to what has been called a second ‘Copernican’ revolution
(Schellnhuber, 1999). In spite of the uncertainties surrounding the concept of
Earth system science (Journée d’études EHESS, 2018), it can be defined as the
scientific domain that, bringing together chemistry, physics, biology, mathe-
matics and applied sciences, transcends the boundaries of academic fields by
treating the Earth as an integrated system of biological, physical, chemical
and human interactions, all of which have affected and will affect the state of
the Earth (Ruzek, 2018).
Insights from the work on Earth system science have been expressed,
including in the 2001 Amsterdam Declaration on Earth System Science
(International Geosphere-Biosphere Programme, 2001), the book, Global
Change and the Earth System: A Planet Under Pressure (Steffen et al., 2004)
and the ‘State of the Planet Declaration’ (Brito and Stafford-Smith, 2012).
New paradigms have emerged from, or been confirmed by, Earth system
science. Two of the most important and comprehensive ideas that underpin
an Earth system perspective are the views that the Earth behaves as a single
complex, integrated system and that humans have become a major driver of
change on the scale of the Earth as a whole. Furthermore, the combination of
these two views has resulted in Earth system scientists warning about the
potential deleterious and irreversible implications of human-driven changes
on the scale of the Earth as a whole for human societies and their planetary
life support system.
1 climate change
2 changes in biosphere integrity
3 stratospheric ozone depletion
4 ocean acidification
5 biogeochemical flows other than carbon (as phosphorus and nitrogen)
6 land system change
7 freshwater use
8 atmospheric aerosol loading
9 novel entities (Rockström et al., 2009).
In other words, the Earth system’s biophysical processes both determine the
capacity of the planet to regulate itself, and maintain stability (ibid.; Steffen
et al., 2015).
The PBF constantly stresses the existence of interdependencies and non-
linear cross-scale interactions and feedback (i.e., cross-scale complexity)
78 Edgar Fernández Fernández
between key biophysical processes for the functioning of the Earth system.
When taking into consideration these circumstances, it is important to
understand the different temporal and spatial scales at which Earth system
processes operate.
At the temporal scale, the PBF stresses the complex interconnections
between fast processes and feedback (e.g., the loss of Artic sea ice) and slow
processes and feedback (e.g., the loss of land-based polar ice sheets). Regarding
the spatial scale, the framework distinguishes the Earth system or planetary
scale – which includes the continental or continental/ocean basin scale – from
the sub-Earth system, or sub-global scale. The former category includes large-
scale Earth system processes, such as climate change and stratospheric ozone,
while the latter comprises other biophysical processes that affect the resilience
of the sub-systems of Earth, as well as the Earth system in its entirety, such as
land system change, freshwater use, changes in biosphere integrity, and changes
in other biogeochemical flows in addition to carbon, e.g., nitrogen and phos-
phorus. These are slow planetary-level bio-physical processes, and include land
and marine systems for which there is no threshold behaviour at the Earth
system scale, but which nevertheless contribute to planetary resilience by acting
as carbon sources and sinks, which regulate water, nutrients and minerals
(Rockström et al., 2009; Steffen et al., 2015).
Two of the processes, one at the Earth system and another at sub-Earth
system scales, have been identified by the authors of the framework as core
boundaries: climate change and biosphere integrity. The integrity of the bio-
sphere (understood as the totality of biotic life within freshwater, marine, and
terrestrial ecosystems) is also critical to the functioning of the Earth system.
The biota within these ecosystems is crucial for determining the Earth sys-
tem’s state, as they regulate material as well as energy flows and how they
respond to both abrupt and gradual change (Steffen et al., 2015). Based on an
analysis of the many interactions between the key biophysical Earth system
processes, the authors of the framework concluded that these two processes
have co-evolved over a period of four billion years, and that while other
boundaries regulate them, they also constitute overarching systems at the
planetary level, and that other boundary processes act within them; conse-
quently, any major impacts on either the climate or the biosphere could in and of
themselves move the planet out of the Holocene. The framework also recognises
the regional scale as being critical to Earth system functioning. These critical
regions vary according to the contribution they make to processes in the Earth
system, and include:
It is hoped that with the recent change in administration the US will soften this
hard-line stance, but the politicisation of the environment may lead to ongoing
problems at the global level when it comes to integrative and consensus-seeking
frameworks in addressing the global climate and biodiversity crises.
Taking (or not) into account nonlinearities and thresholds in the Earth system
As mentioned above, the conceptualisation of the Earth as a complex system
is fundamentally linked to the evidence that the natural state of the Earth is
not that of a single stable equilibrium, but rather one of a wide range of
variability, nonlinearities, and potentiality for abrupt changes and transgres-
sion of critical thresholds (Steffen et al., 2006). This is a very important
characteristic to take into account when considering if contemporary law is
well suited to address the new challenges associated with human-driven
changes in the key biogeochemical processes of the Earth system, including
the increasing risks of crossing thresholds at continental to global scales.
Arguably, contemporary law – including (international) environmental
law – has been grounded in a totally different vision of how natural systems
function: an equilibrium-centred paradigm, where natural systems are expec-
ted to return to equilibrium some time after the perturbation has ceased. This
view does not take into consideration that ecological systems are complex
systems with characteristics such as those previously mentioned, including
nonlinear interactions, thresholds and abrupt changes. The dominance of the
An Earth system science-based perspective 83
equilibrium-centred paradigm has been particularly true for the Earth system
as a whole, because it has been commonly assumed that human activities and
their negative impacts on the environment take place ‘within an overall
envelope of well-buffered global stability’ (Steffen and Springer, 2005, p. 235).
It has been mainly American scholars who, centring their analysis on the US
environmental law developed in the 1960s and 1970s, have pointed out a funda-
mental mismatch between the assumptions behind environmental law – and
therefore the law itself – and the nonequilibrium paradigm in ecology (Tarlock,
1993), the complex adaptive systems nature of the subject matter of environ-
mental law (Ruhl, 1997), a dynamic world (Doremus, 2010), ‘a world of con-
tinual, unpredictable, and nonlinear transformations of complex systems’ (Craig,
2010, p. 9), the dynamics of ecological systems (Arnold and Gunderson, 2013), or
the reality and the tenets of resilience theory (Garmestani et al., 2013).
The traditional inclusion of the maximum sustained yield in international
instruments of hard and soft law as an objective to achieve for natural
resources’ exploitation is an example of the pre-eminence of the equilibrium-
centred paradigm, because this concept carries ideas of optimisation and
maximisation that are not well suited for managing non-linear systems (Hol-
ling, 1996). Such an objective can be found in legal texts, ranging from
international conventions on fisheries, like the International Convention
between the United States of America, Canada and Japan for the high seas
fisheries of the North Pacific Ocean, to the World Charter for Nature.
No evidence of taking into account the complex system nature of the Earth
system, or at least of its subject matter, the climate system, is found in two of
the most global MEAs: the UNFCCC and the Paris Agreement. They do not
make any reference to the complex nature of these systems, to the nonlinear
character of the interactions and feedback between the components of the
system, nor to the possibility of crossing critical thresholds and provoking
abrupt changes. The UNFCCC certainly notes in its preamble ‘that there are
many uncertainties in predictions of climate change, particularly with regard
to the timing, magnitude and regional patters thereof’ (United Nations,
1992b, p. 2), and includes the precautionary approach among the principles of
the convention but does not recognise these uncertainties as an intrinsic feature
of the climate system that derives from its nonlinear nature.
Finally, no evidence of an Earth system approach is found either in the
utilisation of a very similar but different concept to the Earth system that has
sometimes been used in political declarations: the Earth’s Ecosystem.
According to principle 7 of the Rio Declaration on the Environment and
Development: ‘States shall co-operate in a spirit of global partnership to
conserve, protect and restore the health and integrity of the Earth’s ecosys-
tem’ (United Nations, 1992a, p. 2). In a similar way, paragraph 40 of the
outcome document of the United Nations Conference on Sustainable Devel-
opment (also referred to as the Rio+20 Summit), ‘The Future We Want’
called ‘for holistic and integrated approaches to sustainable development that
will guide humanity to live in harmony with nature and lead to efforts to
84 Edgar Fernández Fernández
restore the health and integrity of the Earth’s ecosystem’ (United Nations
General Assembly, 2012, p. 8). Despite these two references, there is no clarity
of what the Earth’s ecosystem and its health and integrity mean, nor are these
concepts defined anywhere. Furthermore, this simple reference to the Earth’s
ecosystem and its health and integrity does not necessarily imply the recognition
and understanding of the Earth as a complex system. It gives no hints on how
the Earth’s ecosystem and its underlying processes behave. Finally, while the
concept of the Earth system includes humans among its components, the Earth’s
ecosystem excludes them.
Conclusion
The above analysis tends to show that an Earth system perspective is missing in
contemporary law, including in international environmental law. It has been
pointed out that a disconnect exists between law and Earth system science
(Kotzé and Kim, 2019). One reason for this could be that most existing multi-
lateral environmental agreements and environment-related instruments were
conceived at a time when Earth system science did not yet exist or was, at best, in
its initial stages. Integrating an Earth system perspective into law is nevertheless
urgently needed at a time when enough progress has been made in Earth system
science to better understand the functioning of the Earth system and the nature
of the risks that humanity will inevitably face if a linear approach to Earth
system change continues. Integrating an Earth system perspective into existing
legal frameworks would result in this much-needed, new type of law, called, in
this book, Earth system law.
This integration of an Earth system perspective into contemporary law may
have a particular interest for human societies, since it could contribute to
avoiding the transgression of critical thresholds, and the occurrence of abrupt,
catastrophic changes, at the level of the Earth system. Taking into con-
sideration the extent of the risks that human societies face as a consequence
of human-driven changes to the Earth system, it seems at least reasonable
that the integration of such a perspective should be seriously considered.
If it is agreed that an Earth system perspective is a foundational feature of
ESL, then ESL should mirror the basic elements of this perspective. This has
implications for distinguishing ESL from traditional environmental law. Ulti-
mately, the object of ESL transcends the sectoral, linear, equilibrium-centred
approach that traditional environmental law has applied to environmental
processes at all scales, even those that are global in nature, such as climate
change: it is about maintaining a state of the Earth system that can sustain
human societies as currently understood (i.e., the planetary conditions for
achieving universal objectives, such as those enshrined in the Charter of the
United Nations and the UN Sustainable Development Goals); about main-
taining, within their natural range of variability, the underlying interacting
nonlinear processes that determine such a state of the Earth system that is
favourable for the life and well-being of contemporary human societies; and
An Earth system science-based perspective 85
about regulating the human activities that drive undesirable changes in those
processes and the state of the Earth system.
Despite its planetary focus, ESL is multi-scale, as it needs to address
simultaneously and in a coherent and integrated manner multiple environ-
mental and social processes that are interdependent and that interact at mul-
tiple scales of time and space, including from the local to the planetary scales.
Here, the intrinsic link of ESL not only with Earth system science, but also
with ESG is more than evident.
For all the above-mentioned reasons, moving into the dimension of ESL
would imply actions and considerations, such as the adoption of a common
global overarching objective of international law, that identifies and aims to
protect a desirable state of the planet for humanity. There is clearly a need for
regulatory frameworks and institutions not to focus on processes separately,
but to address them simultaneously, in an integrated and coherent manner.
The establishment of an intergovernmental panel of experts on the Earth
system, that operates at the interface between science and policy, similar to
the IPCC (Intergovernmental Panel on Climate Change) and the IPBES
(Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem
Services), and works in collaboration with such bodies is clearly also neces-
sary. Just as due consideration must be given to the interaction of key bio-
physical processes for the functioning of the Earth system, so too must
recognition be given to the same reality in the political realm of global
environmental governance.
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6 The ESL framework
Re-visioning in the age of transformation
and the Anthropocene
Margot Hurlbert
Introduction
In this chapter, the Earth system governance research (ESG) framework
(Biermann et al., 2010) is re-envisioned in a critical realist Earth system law
(ESL) framework. By illustrating the ESG research lenses, the contextual
conditions of transformations, inequality, the Anthropocene and diversity are
explored. An argument is created that the Earth system research lenses can be
explored across the dialectic of positivism and constructivism. First, the Earth
system legal framework provides a heuristic to organise and contemplate the
Earth system and the law’s operation within it. The re-envisioning of the ESG
framework to create the ESL framework aids in addressing limitations in each of
the positivist and constructivist research approaches. The contemplation of both
a jurisprudential positivist study of law with a constructivist study of law
addresses the limitations of each. By considering the full spectrum, the
possibility of transformation of law in and for the Anthropocene emerges.
A need has been identified for law and its scholarship to evolve for relevance
within what some argue is a new geological epoch of the Anthropocene, where
humans have produced a stratigraphic signature in sediments and ice distinct
from the Holocene epoch (Waters et al., 2016). The term ‘Anthropocene’ is
derived from anthropos, from the ancient Greek for human (Zalasiewicz et al.,
2015). Its indicators include: the Earth’s position at the precipice of the sixth
extinction; radioactive fallout embedded in sediments of the Earth since the
1940s; and the fact that the broiler chicken is the largest standing stock of any
other bird species on the planet, estimated at 22.7 billion in 2016 (Bennett et
al., 2018). This time scale includes but also transcends the duration of anthro-
pogenic climate change (Castree et al., 2014). The era of the Anthropocene is a
concept that exposes the magnitude of humanity’s impact on socio-ecological
systems, now so great that humans are altering the basic Earth system pro-
cesses. The Anthropocene represents a conundrum where humans have become
the central change agent of the Earth, and are responsible for making the
changes that will determine Earth’s future. But much uncertainty exists. Has
humanity already overshot its greenhouse gas footprint wherein global warm-
ing can be maintained at well below 2° Celsius? Can the curve that is the
DOI: 10.4324/9781003198437-8
90 Margot Hurlbert
current trajectory of species extinction be flattened? Can human behaviours,
relations, practices and the supporting architecture of laws be changed to the
degree necessary?
An Anthropocene gap has been identified in relation to law and legal science’s
role in addressing the environmental challenges of the Anthropocene (Galaz,
2014). This was initially explored in a juridical research agenda (Kotzé and Kim,
2019) that concluded that law might not be worthy of the challenge of the
Anthropocene. A comprehensive re-interrogation of the nature, functions and
objectives of the law and its science is required in the Anthropocene’s ‘brave new
dystopian world’ (ibid., p. 3). It is argued here that it is not just the law, but its
study, analysis and imagination that must rise to the challenge. This chapter
embarks on the re-imagination of law and its science, or more aptly, its multiple
sciences, that create, execute, and change it.
Research analysing and addressing complex sustainability challenges,
including environmental harm and climate change, includes natural and social
science in interdisciplinary research processes. Open systems that reflect the
dynamics of Earth biophysical systems and society consist of a multiplicity of
mechanisms and the resultant emergent properties necessitating an epistemic
integration of the knowledge of these mechanisms in the natural and social
world (Olsson and Jerneck, 2018). This epistemic integration involves new
concepts, theories and modes of understandings and many disciplines (Bhaskar
et al., 2010). Compiling an interdisciplinary science is no small task.
In this chapter, ESL is conceived as an enduring social structure, a unique
system (Luhmann, 2004) and a representative manifestation of the society in
which it is situated (Durkheim, 1893). Law both shapes and is shaped by
social practices (Cotterrell, 1995) which regulate human interactions and
impact the non-human world. The Anthropocene gap is more accurately
characterised as a lack of knowledge of which laws, which conception of the
law, and which methodologies of researching the law best respond to the age
of the Anthropocene. To address this gap, this chapter surveys law and society
scholarship, sketching a pluralistic legal research agenda advancing the ESG
research lenses, creating an ESL framework addressing the Anthropocene.
After a brief overview of the chapter’s uniting ontological and epistemological
foundation, a sketch is made of ESL in order to build ESL’s analytical fra-
mework, and multiple methodologies are provided, addressing the various
elements: architecture and agency, democracy and power, justice and alloca-
tion, anticipation and imagination, and adaptiveness and reflexivity.
(a)Architecture
Law is often studied in a jurisprudential positivist manner and this method is
almost exclusively taught in North American law schools. Assumptions of
people as actors making rational choices with full information frame an official
version of the law (Naffine, 1990). The jurisprudential study of law is the insti-
tution judged as perhaps unworthy of the challenge of the Anthropocene (Kotzé
and Kim, 2019). A positivist view of the law supports a vision of Earth system
architecture (Burch et al., 2018) where law is the firm institution that supports
and determines the host of other institutions (organisations, companies, govern-
ments and people) that form an interlocking web of agency or decision making
that is determined, validated and enforced by the law (Luhmann, 2004). Here
norms, values and customs which operate with lesser sanctions than law also
interlock in the web of Earth system architecture.
Luhmann, a legal systems theorist, envisioned the law as a closed system
(meaning a system without external influences). Luhmann endorsed the view
that the practice of law and the dispensation of justice are completely self-
referential, based on statutes, legal decisions and reasoning, with no external
influences. Even new scientific methods of evidence such as the attribution of
The ESL framework 93
causes of climate change, do not exist within the law until a judge determines
that the methods are credible and applicable. This conception of law is based
on specialised actors and institutions of the legal system using similar logic to
the jurisprudential view of law (Luhmann, 2004). Law does not function so
much to impose one group’s will on others, but is seen to provide the archi-
tecture to control, reconcile, and mediate the diverse and conflicting interests
of individuals and groups within society in order to maintain harmony and
social integration (Vago, 2015).
The architecture of law can advance the adaptation to climate change. Law
can mandate and guide behaviour and influence governance structures and
actors in a manner that fosters adaptation (Scotford et al., 2017). Strong laws
can transpose international commitments for greenhouse gas reductions into
domestic regimes (Townshend and Matthews, 2013) and support the neces-
sary flow of climate finance to developing countries (Nachmany et al., 2017).
The study of these institutions at the global level (Young, 2017), and national
and local level (Hurlbert, 2011), makes important contributions to Earth
systems law.
(b)Agency
Individuals and organisations that operate and negotiate within the legal
system, commencing legal claims, negotiating settlements, and operationalis-
ing laws, affect agency in recreating and transforming the law. Cotterrell’s
living law, previously introduced, regards law as a social structure, both
shaping and being shaped by the society in which it operates; living law is a
set of rules actually followed by individuals in social life (Cotterrell, 1995).
An illustrative example can be found in the highly technical area of water
rights. The determination of water right priorities can be made with a very
technical, legalistic review of interests, dates of licenses, types of use, etc.
However, from an analysis of actual behaviour in times of water access and
priority conflict, rules as to water priorities have been found to be largely
ignored, helping address the inequality of those with or without water rights
(Hurlbert, 2009). One research study conducted interviews with people affected
by water shortages and ascertained the living law or the norms and behaviours
which resolved the specific water conflict. Community practices of sharing and
maximisation of benefits were found to predominate (versus legal priority rules)
(Hurlbert, 2011). This study uncovered the living law of actors in times of
drought and provides an avenue to envision both social and legal change.
Opportunity for agency is created by granting standing to bring legal
actions and developments of administrative law. The granting of legal stand-
ing to marginalised groups’ claims of environmental harm evolved simulta-
neously with the emergence of administrative law, increasingly available on
the global level from 2005 onwards. Administrative principles, procedures and
mechanisms that promote accountability include standards of participation,
openness of decision making, following the rule of law and providing
94 Margot Hurlbert
reasoned decisions capable of review (Kingsbury, 2009). A signal of standing
in the age of the Anthropocene is the granting of river rights in New Zealand,
including rights to flow, be free from pollution and be sustainable (Global
Alliance for the Rights of Nature, 2017).
New frontiers of ESL are being created by important agents of Earth
system litigation. An example is the New York Attorney General who has
sued Exxon for $1.6 billion in damages for fraud in relation to its disclosure
of the economic aspects of climate change (Cooper, 2019). Human rights
claims and tort liability for failure to reduce greenhouse gases are advanced
due to developments in attribution science detecting human influence on
extreme weather, broadening the legal duty of government (Marjanac et al.,
2017), business and others to manage foreseeable harms (ibid.). Citizen suits
in domestic courts are not a universal phenomenon, but are increasing (Setzer
and Byrnes, 2020). Even if unsuccessful (Estrin, 2016), these suits are impor-
tant in underlining the high level of public concern, and may eventually result
in significant damage awards of anything up to or exceeding US$570 trillion
(Heidari and Pearce, 2016).
(a)Democracy
Research surrounding democracy exposes the exclusion of interests from legal
decision making, and the contextual condition of inequality. An example is
the exclusion from decision making in both Chile and Argentina for anyone
without a legal water right (Hurlbert, 2017). Such exposure can catalyse
institutional change reflected in the recognition of the rights of nature and
advancing climate change law discussed below.
The rejection of Indigenous rights in favour of oil pipelines by the
Supreme Court of Canada in its jurisprudential positivist legal analysis is
illustrative. The Chippewas of the Thames in Canada objected to the
pipeline reversal, capacity expansion, and amendment to carry a less pure
form of oil (crude), arguing that the potential oil spills might harm their
land-based livelihoods of hunting, trapping and fishing rights. The dis-
missal of this claim was problematic since the public interest can meet the
requirements for determining and granting those rights’ constitutional
protection in the first place. Achieving reconciliation is difficult if projects
are approved simply because of the amount of money they bring in or that
they create. In these kinds of framework it is not always possible to
ascertain if the Indigenous perspective on rights, the land, environment, or
ecosystems has been properly taken into account. Generally speaking, the
rights and interests of First Nations appeared to be either ignored or
downplayed in such public interest-based tribunals (Freedman and
Hanson, 2009).
The ESL framework 95
The National Energy Board rejected the Chippewas’ concerns surrounding
spills by referring to Enbridge’s commitment to safety. The oil economy and
its jobs outweighed the risk to traditional Indigenous livelihoods. This positi-
vist jurisprudential legal analysis illustrates the justice system’s continued
support of corporate commercial public interests to the detriment of both
Indigenous rights, and protection of the environment that would support fish
and wildlife.
(b)Power
Critical legal studies, a constructivist scholarship, recognises that the law is
a site in society that reproduces gender, race and class inequality (Comack
and Balfour, 2004). Jurisprudential positivist law is viewed by critical legal
scholars as a reproduction of dominant thinking about the social world
and a perpetuation of idealised liberalism through law school teachings
and the preoccupation with the rights of the individual. Judges are seen as
perpetuating a particular kind of elitist politics in their decision making,
rationalised by paltry references to precedent case law (or the common
law). The prolonged preoccupation with individual rights fails to account
for social drivers of poverty and low socio-economic status (MacDonald,
2002), or expansion and recognition of rights for flora and fauna.
Critical legal scholars postulate that the law can be either an instrument
of the economically powerful in society to continue to exert their eco-
nomic power, or used by the state in support of the economically powerful
(perhaps through arguments about maintaining the economy and jobs)
(Hunt, 1981). Research has revealed the carbon footprint of the world’s
public and private corporations. The top 20 are responsible for 30 per cent
of global emissions, and almost 70 per cent of industrial emissions since
1751 originate from 108 fossil fuel and cement companies (Climate
Accountability Institute, 2020). In 2018, the top greenhouse gas (GHG)
emitter was Saudi Aramco, a state-owned company at 61,143 MtCO2e,
followed by Gazprom (Russia 44,757), Chevron (USA 43,787), and Exxon
Mobil (USA 42,484) (ibid.).
Consciousness-raising by critical legal scholars and other mechanisms of
societal change (including legal reform) have advanced diversity. In some
countries, the important place of Mother Earth is enshrined in law. Justice
looks quite different if the Earth is the focus, instead of humans and their
relationships as the key consideration. By way of example, in Bolivian law,
the Law of the Rights of Mother Earth of 2010 recognises the rights of
Mother Earth and her constituent life systems, including human commu-
nities (Calzadilla and Kotzé, 2018). Rights include those of life, diversity
of life (for the variety of beings that comprise Mother Earth), water, clean
air, restoration and to live free from contamination (with regards to toxic
and radioactive waste).
96 Margot Hurlbert
Allocation and justice
(a)Allocation
Allocation entails responsibilities, for example, in relation to the climate, the
common atmosphere; in relation to water, responsibilities of supplying water to
meet water rights (Gupta and Lebel, 2010). Allocation also potentially ‘goes
beyond the issue of basic needs and looks at how the remainder of the resources
can best be divided among people’ (ibid., p. 379). In ESL, analysed in a jur-
isprudential positivist manner, there is evidence of transformative change, and
expansion of responsibilities beyond people to include the Earth system.
The inclusion of environmental objects into the system of law has expanded
the legal environmental methodology (Ebbesson, 2003), allowing for an ana-
lysis of law’s protection (Kim and Bosselmann, 2013). In New Zealand, the
Environment Act of 1986 establishes an Environment Commissioner tasked
with maintaining and improving the quality of the environment through a
review of the government. The Commissioner is specifically tasked with the
maintenance and restoration of ecosystems of importance, especially those
supporting habitats or rare, threatened, or endangered species of flora or
fauna (s. 17). In 2017, New Zealand passed the Te Awa Tupua (Whanganui
River Claims Settlement) Act 2017, which recognised the Te Awa Tupua, an
indivisible and living whole comprising the Whanganui River from the
mountains to the sea and incorporating all its physical and metaphysical ele-
ments (section 14 declared the Te Awa Tupua a legal person). This is an
important movement from utilitarian and imperial legal modes towards an
appreciation of the rights of everything that constitutes the Earth, decoloni-
sation and pluralism; nevertheless, while promising, legal recognition of
nature is just a start (Charpleix, 2018).
Environmental courts and tribunals have exploded since 2000 (Pring and
Pring, 2016). These courts specialise in environmental cases with adjudicators
trained in environmental law. This specialisation arguably results in improved
decisions (Stempel, 1995) and better jurisprudential positivist law. Authors
Rühs and Jones document the constitution of Ecuador that implemented the
right of nature (Rühs and Jones, 2016). Legislative recognition is just the
beginning as the recognition of the rights of nature have underperformed,
yielding to a massive foreign debt, reliance on the extraction of natural
resources, anthropomorphisation of nature and seeing nature and humans as
one homogeneous entity, and lack of education of judges in environmental
problems, among others (ibid.). While cases such as Ecuador are promising,
there is still no international environmental constitution (Kotzé, 2014).
Contrary to the common misconceptions that people are individualistic
and selfish by nature, anthropologists have shown that gifting and sharing
have existed as a basis for community relationships in societies around the
world (Keltner et al., 2010). Every human being is entitled to the minimum of
basic goods of life that is consistent with respect for human dignity (Weil,
The ESL framework 97
2002). A jurisprudential positivist analysis of allocation might consider the
Earth’s commons in relation to the law of property. Humans depend on the
Earth to live. A picture of the Earth from space drives home the fact that
humans share and depend on a fragile planetary ecosystem, an earthly com-
mons of land, water and atmosphere. Only a few hundred years ago, far more
of the Earth’s forests, waters and minerals existed in a state of commons than
today. In England, Wales and Scotland, millions of acres of land in the
seventeenth century were termed common land and open to common rights
of grazing livestock and mowing meadows. The process of enclosure con-
verted most of these open fields to private property (Castree et al., 2014).
However, some common property still exists and could be expanded; there
were 87 community pastures in the Canadian prairies in 2008 (Kulshreshtha
et al., 2008). Now, global commons include the global ocean, the atmosphere
and outer space; when viewed from space, it is clear that humans continue to
share Mother Earth.
(b)Justice
Justice is tricky, and ‘defining it daunting’ (Hurlbert, 2011). Some may view
court decisions as the pinnacle of justice (as in a jurisprudential positivist
approach to justice). For social justice advocates, justice is viewed normatively,
constructed by people(s), and not necessarily consistent with majority opinion or
the rule of law. In the Earth system, justice is interdisciplinary (Lima and Gupta,
2013), inherently constructed by differing ontologies and epistemologies.
Jurisprudential positivist environmental law guarantees three rights: (1) the
right to information; (2) the right to a hearing; and (3) the right to compen-
sation when one’s rights are breached (Cutter, 1995). This definition is really
about simple procedural or process equity, or addressing the direct causal
mechanisms of inequity. In the western world, the government is responsible
for passing necessary legislation to protect the environment, and people
affected by pollution or environmental contamination can access remedies in
court (Hurlbert, 2011). However, the lived reality of environmental law has
been shown to perpetuate inequality. Some of the earliest environmental jus-
tice movements in North America were started by a minority, focused on a
specific, local, hazardous environmental practice and seeking legal remedies
for its correction. They relied on the media and a jurisprudential, positivist
court action. In the US, the environmental justice movement’s genesis is
thought to have begun in 1982 in Warren County, North Carolina, and the
protest against a hazardous waste landfill. Residents, rural and poor, were joined
in their protests by national civil rights groups, environmental groups, clergy and
the Black Congressional Caucus. Studies surrounding this event confirmed
environmental racism (Hurlbert, 2011). The perspective, voices and wishes of
these poor, marginalised Black people were not heard until their mobilisation;
narrow procedural and legal environmental justice was non-existent because
these people were Black (ibid.).
98 Margot Hurlbert
Human access to and use of the Earth’s resources for economic growth and
livelihoods have also harmed the Earth and depleted and degraded its resources.
The environment suffers from a depletion of resources, such as air, water and
soil, the destruction of habitats and ecosystems and the extinction of wildlife. An
analysis of the living law in Nigeria illustrates inequality. A mixture of interna-
tional and Nigerian laws allows environmental ills such as pollution and oil
resource revenues to be inequitably distributed with predominantly marginalised
people experiencing disadvantage through the contamination of their environ-
ments (Dobson, 1998). In Nigeria, Shell pumps oil to make a considerable profit,
but the local Ogoni people live without adequate roads, electricity and water in a
wasteland of environmental degradation due to Shell’s pumping activities
(Watts, 2001). International laws, and lack of political will on the part of the
Nigerian government, together with Shell’s nonchalant attitude have continued
this state of affairs into the twenty-first century (Yakubu, 2017).
Legal environmental justice requires people to reassess their relationship to
the Earth, to reconsider their material requirements from the Earth, to evaluate
their relative share of the Earth’s resources with the community and their worldly
neighbours and to consider all of this while taking into account the interests of
future generations. This exercise requires a relativist assessment of the dominant
position, a construction of what ought or could be, and a critical assessment of
what currently exists. Justice theorist John Rawls posited that a fair distribution
of societal goods could be arrived at by pretending one is behind a veil of
ignorance and one’s own life chances and circumstances are not yet determined
(Burch et al., 2018). Without the personal bias of being either wealthy (and
wanting to maintain that wealth) or being poor (and wanting a better status),
one would then philosophise about how a just society would allocate its goods. If
one was omnipresent, or identified more closely as a global citizen than that of a
particular country, then preferences and choices would equitably allocate the
benefits of wealth and the detriments of pollution and development globally.
(a)Anticipation
Within the Earth system, anticipation ‘seeks to steer (or govern) an unknown
and largely unknowable future’ fraught with conflicts and uncertainties (Burch
et al., 2018, p. 62). Although increasing in importance in the environmental
and sustainability realm, jurisprudential positivist law predominantly functions
in a reactionary manner responding to breaches of rights and breaches of duty
and the suffering of damages. However, anticipation can be thought of as
building capacities rather than knowing or predicting futures (Guston, 2010).
As a foundational institution of socio-environmental regimes, it is possible to
assess law and its regulatory, economic, and suasive mechanisms that reduce
exposure and vulnerability, thereby building capacity to respond to impacts of
climate change (Hurlbert, 2015).
The ESL framework 99
The jurisprudential positivist institution of law informs, advances, and per-
haps limits, adaptation to climate change. As an example, the human right to
and property interest in water impact the adaptive capacity of agricultural
producers in times of drought (Hurlbert, 2017). Granted, other institutions
also impact adaptive capacity (access to finance, irrigation infrastructure,
etc.). It is possible to focus on the rule of law, assessing its goals (whether they
are ecological), and law’s ability: (1) to advance polycentric loosely integrated
multi-scalar responses; (2) to foster social and ecological resilience by adapt-
ing to changing conditions; and (3) to embrace iterative processes and feed-
back loops (Arnold and Gunderson, 2013). As an example, the human right
to water has transitioned into an interdependent right connected with other
rights, including food and the elimination of poverty (Stevens and Kanie,
2016). In contrast, private property interests in water can be adaptive and
allow the transfer between irrigators able to produce a crop in times of
drought, albeit that this may reduce the adaptive capacity of those without
protected water rights (Hurlbert, 2017). A diversity of water property interests
can advance anticipation when human rights meet drinking water, sanitation
and hygiene needs and surplus water is allocated through either government
agency, private property interests or a combination thereof (ibid.).
(b)Imagination
Mechanisms that cultivate, govern and respond to imagination surpass out-
dated modes of legal reasoning, overturn potential path-dependent legal rules,
and create, and address, complexities of wicked problems. Western law tradi-
tionally regards humans and the environment as distinct separate categories
consistent with a human exemptionalist paradigm of humans controlling
nature (Catton Jr and Dunlap, 1978). However new imaginations of law,
including the legal status and rights of rivers (as discussed) are emerging. The
embedded in nature paradigm recognises interrelated species and concerns,
recognises that humans live within a finite biophysical environment, and seeks
to reduce human impact on the environment through consuming less (ibid.).
Alternate imaginations of humans as embedded in nature (Harper and
Snowden, 2017) require a construction outside of traditional jurisprudential
positivist law; these imaginations have historically existed and do exist in
Indigenous law. For the Assembly of First Nations in Canada, this would be
described as Honouring Earth:
From the realms of the human world, the sky dwellers, the water beings,
forest creatures and all other forms of life, the beautiful Mother Earth
gives birth to, nurtures and sustains all life. Mother Earth provides us
with our food and clean water sources. She bestows us with materials for
our homes, clothes and tools. She provides all life with raw materials for
our industry, ingenuity and progress. She is the basis of who we are as
‘real human beings’ that include our languages, our cultures, our
100 Margot Hurlbert
knowledge and wisdom to know how to conduct ourselves in a good way.
If we listen from the place of connection to the Spirit That Lives in All
Things, Mother Earth teaches what we need to know to take care of her
and all her children. All are provided by our mother, the Earth.
(Assembly of First Nations Canada, 2013)
Traditional Indigenous peoples’ legal traditions are diverse across the many
First Nations in Canada, but well documented (Borrows, 2002). Since the
1970s, both Canada and the United States of America have incrementally
expanded recognition of Indigenous rights, including political self-determina-
tion, with varying success, depending on geographies and policy frameworks
(Davidson, 2019).
(a)Adaptiveness
Jurisprudential positivist climate lawsuits are advancing adaptive capacity in
the time of the Anthropocene. These lawsuits include: (1) challenging gov-
ernment or public official administrative planning decisions that fail to
account for or adequately address climate change in the development and
protection of coastal zones, water-stressed regions, flood-prone areas, or
decisions affecting endangered species (Banda and Fulton, 2017); (2) against
private entities such as ExxonMobil for failure to adapt to climate change by
preparing Everett Terminal to increased precipitation, sea level rise and storm
surges (Bouwer, 2018) or Shell Oil for failure to incorporate climate risks in
its investment in a bulk storage and fuel terminal in Rhode Island (Setzer and
Byrnes, 2020); and (3) against public issuers for failing to report climate risks,
issuing shareholder disclosure that is misleading, weak or lacking in rigour
(ibid.). A geographical expansion of climate litigation is occurring in the
Americas, Asia and Pacific region, and Europe (ibid.).
Human rights claims may be an important tool in organising and unifying
adaptation in the future and advancing equality (Hall and Weiss, 2012). For
instance, as it is projected that 600 million people will suffer malnutrition due
to climate change, the right to food implores states to take necessary actions
to alleviate hunger (ibid.). Human rights principles of progressive realisation
promote adaptative decision making by employing human rights standards,
benchmarks and prioritising adaption for the most vulnerable (ibid.).
(b)Reflexivity
Reflexivity embodies a capacity to be something different rather than do
something different (Dryzek and Pickering, 2017), beyond institutions gen-
erating feedback on themselves to institutions building capacity to critically
scrutinise their own practices (Voß et al., 2006). Jurisprudential positivist law,
The ESL framework 101
that considers case precedent, existing statute and constitutional law, by defi-
nition excludes the possibility of reflexivity. Could law achieve a capacity to
reconsider core values such as justice and ability to seek, receive and respond
to early warning about potential ecological state shifts (Dryzek and Pickering,
2017)? Exploring law in this manner requires a historically constituted soci-
ality that involves respect for the internal presentation of legal concepts in a
jurisprudential manner (as if formally rational), coupled with a historical and
deconstructive exposure of the limits of such an approach (Norrie, 2013).
Such a methodology can be employed through critical realism as it questions
law’s claims and how law sustains these claims, but then interrogating what
social conditions and contexts are possible. This methodology illuminates the
self-contradiction between law’s self-image and its sociopolitical reality (ibid.).
This task is by no means easy. In the time of the Anthropocene, the socio-
political reality has yet to be fully and comprehensively constructed. The
uncertainty of the impacts of climate change and the diversity of potential
shared socio-economic pathways of the future add complexity to the capacity
of studying law with reflexivity. The potential of ESL scholarship to explore is
immense. One potential avenue in the context of the Anthropocene concerns
globally networked risks – specifically the causal role of factors inter-
connected in risk transmission pathways. Globally networked risks concern
subjects such as global trade agreements, financial investment decisions, or
technological change (Galaz et al., 2017).
Constructing a vision of law that is transformative represents a gap in the
ESL literature. However, examples surely exist. In relation to financial
investment decisions, Carney calls for breaking the ‘Tragedy of the Horizon’
(Carney, 2019, p. 15), whereby the catastrophic effects of climate change are
experienced beyond traditional horizons, imposing a cost of future genera-
tions. Inciting Herculean legal change, the Task Force on Climate-related
Financial Disclosures (TFCD) increased the required disclosure of climate-
related risks. Now companies require in their financial statements a strategy
identifying climate-related risk, an assessment of the resilience of the organi-
sation’s strategy (taking into consideration different climate-related scenarios,
including a 2° Celsius or lower scenario), and an outline of processes for
managing these risks (Sarra, 2018). Institutions such as the G20 (Carney,
2019), the American Bar Association (Brammer and Chakrabarti, 2019) and
the European Commission (Zadek, 2019) have adopted or endorsed these
standards. The TFCD and recent developments advance the number and
success of court cases surrounding fiduciary and liability laws, including
securities fraud for misrepresentation (Wasim, 2019).
Conclusion
This chapter has re-visioned and reimagined the ESL framework using law and
society scholarship. It has created a dialectic: positivist research lenses with
architecture, democracy, allocation, anticipation, and adaptation; constructivist
102 Margot Hurlbert
research lenses aligning with agency, power, justice, imagination, and reflexivity
of the ESG framework. A summary is presented in Table 6.1.
There are limitations. The illustrations are by no means comprehensive,
and within the space of this chapter this task would be impossible. It is also
possible that an approach of positivism could be used to explore the research
lenses illustrated here with constructivism, and vice versa. The argument pre-
sented is that the lenses can be thought of as a dialectic, where two research
Table 6.1 Earth system law research lens and contextual conditions
Lens Jurisprudential positivist Constructivist law Lens
law
Architecture Closed legal system of Living law of water Agency
specialised actors and rights at times of
institutions drought addressing
inequality
Regulatory law advancing Expanded standing
adaptation and mitigation for diverse climate
to climate change for lawsuits and the
transformations Anthropocene river
rights
Democracy Exclusion of interests from Exposure of inequal- Power
legal decision making ity of law’s support
(such as those without for top GHG-emit-
legal water rights in water ting companies
governance)
Exclusion of Indigenous Advancement of law’s
rights by public interest- diversity recognising
based tribunals demon- rights of Mother
strating inequality Earth
Allocation Transformation of respon- Inequality of distribu- Justice
sibility for environmental tion of environmental
decision making (Te Awa harms to margin-
Tupua indivisible and alised people
living whole of River
Basin)
Environmental courts and Transformation of
tribunals advancing diver- distribution of Earth’s
sity of legal system resources
Anticipation Diversity of legal water Diversity recognising Imagination
instruments advancing legal pluralism of
adaptation to impacts of Indigenous tradi-
drought tional law
Adaptation Transformative lawsuits Transformation of Reflexivity
and human rights claims public issuers dis-
advancing decision- closure to include
making accounting for consideration of cli-
impacts of climate change mate scenarios
The ESL framework 103
approaches – jurisprudential positivism, and constructivist living law – coexist
across a spectrum. Neither is wrong or right, but both exist in contradictory and
relativist ways. This chapter has argued, and illustrated by example, that the ESL
research lenses can be explored across this dialectic of positivism and con-
structivism. By considering the full spectrum, the possibility of transformation
emerges.
At the forefront, the ESG framework provides a heuristic to organise
and contemplate the Earth system and the law’s operation within it. This
chapter has illustrated in allocation and anticipation the potential for the
jurisprudential positivist research lens to advance transformation of responsi-
bility. Advances, including the Te Awa Tupua living whole of River Basin,
and the diversity of legal systems through the creation of environmental
courts counter criticism of the jurisprudential positivist law not considering
nature and relations of humans with the Earth. This chapter also illustrated
legal scholarship surrounding the diversity of law in recognising the rights of
Mother Earth, in the research lens of power.
In the reorganisation of the ESG framework for an ESL framework and
the creation of a dialectic, the limitations of singular approaches to law and
society scholarship are potentially addressed. Just as there are limitations
with a singular jurisprudential positivist approach to the law, so there are
also with a singular constructivist living law. However, the contemplation of
both a jurisprudential positivist study of law with a constructivist study of
law aids in addressing the limitations of each. Traditionally, the jur-
isprudential positivist study of law focuses exclusively on humans and their
inter-relations, prioritising the prevalent relations of law and the legal
system and advancing a narrative of law that is clear, precise, stable, and
difficult to reconcile with scientific uncertainties (Honkonen, 2017). How-
ever, the constructivist research lens illuminates change with the expansion
of a diversity of climate lawsuits holding entities responsible in relation to
greenhouse gas emissions, buttressed by improved attribution science. The
consideration of agency and imagination allows for law’s reformation and
real legal transformation.
The constructivist research lens is often criticised as illustrating the weak-
nesses of the legal system but not advancing any path to remedy them (Hurl-
bert, 2011). The research lens of power and justice exposes the inequality of the
distribution of climate harms, and theoretically addresses law’s deficiencies so
they can be remedied. However, the jurisprudential positivist law approach in
adaptation illustrates the transformative potential of the advancement of
human rights claims advancing decision making for climate adaptation.
The jurisprudential positivist approach is often criticised as only reifying
(ratifying and reproducing) current laws and practices (i.e., jurisprudential
positivists take the official version of law – that law is just and unbiased – for
granted); the reality is that access to expensive lawyers and courts is often a
barrier to justice. By examples such as the recognised diversity and legal
pluralism of Indigenous traditional law, and in the research lens of agency
104 Margot Hurlbert
(the recognition of river rights), this chapter documents through the con-
structivist approach, real legal transformation.
Lastly, the jurisprudential positivist approach is criticised as it fails to analyse
or explain power differentials, provide reasons for this power difference, and pro-
vides no praxis of action to remedy or change unequal power relations (Hurlbert,
2011). Constructivist approaches in the research lens of power and justice expose
these power differentials and provide the praxis of climate lawsuits in agency and
transformation (of public issuers’ disclosure laws) to make real change.
This chapter has exposed a gap in the law and society scholarship and
nascent ESL literature. This gap exists in relation to exploring and illustrating
legal transformations. It is not that examples of law’s transformations do not
exist. The amendment of laws surrounding public issuers’ financial disclosures
to combat the ‘Tragedy of the Horizon’ (Carney, 2019) is an example. The
challenge is for legal scholars to document, explore, imagine and advance
ESL’s transformations.
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Part III
The normative dimensions of
Earth system law
How ‘should’ ESL be used, and what values is it seeking to promote and
protect? Part III explores this question, through the lenses of inequality and
sustainability, key drivers of ESL’s development.
DOI: 10.4324/9781003198437-9
7 Rights of nature as an expression of
Earth system law
Alice Bleby
Introduction
Mounting evidence of global ecological catastrophe, increasing scientific
capability to understand the Earth system as an interconnected whole, and
a growing appreciation of the scale of human impact upon that system,
highlight the inadequacy of current legal regimes in the context of the
Anthropocene. In response, scholars and communities around the world
are advocating for – and, in some cases, implementing – alternative legal
frameworks, that reimagine the objectives, actors, institutions and architecture
of environmental law.
Earth system law (ESL) is an emerging conceptual legal framework that
aims to describe and prescribe the qualities of legal systems that can meet
normative and regulatory challenges emerging in the current time (Kotzé and
Kim, 2019). ESL builds on the efforts of Earth system governance (ESG)
research to synthesise the discoveries of Earth system science with social sci-
ence research and practice. Although ESG research has focused on the actors,
institutions, rules and processes encompassed by the concept of governance
(Biermann et al., 2010), law and legal institutions have been peripheral to this
agenda; and, equally, ESG perspectives have not penetrated the judicial realm
(Kotzé and Kim, 2019). ESL is a relatively new concept and field of inquiry,
for which no full account or integrating theory yet exists (Kotzé, 2019). This
chapter draws on early elaborations of the concept, parameters and emerging
discipline of ESL, to suggest several themes or qualities that may be sought in
an ideal version of ESL, and to draw out evidence of those qualities in an
emerging contemporary legal doctrine, i.e. the rights of nature.
ESL contains an imperative for transformation: a paradigm shift is
required to respond to the exigencies of the Anthropocene (ibid.). The con-
textual frame of the Anthropocene is inextricable from conceptions of ESL
law (albeit contested), as it is embedded in the theoretical framework of ESG
(Biermann, 2014). Although originally coined to describe a geological epoch
(Crutzen and Stoermer, 2000), the term Anthropocene has expanded to
articulate a socio-political conceptual framework that emphasises the role of
humans and human systems in causing and perpetuating damage to the
DOI: 10.4324/9781003198437-10
112 Alice Bleby
environment and the Earth system. Viewed as one of the most important policy
concepts of the contemporary era (Biermann, 2018), the Anthropocene both
provides an account of how the current crisis has been produced, and describes
the context in which solutions to humanity’s predicament must be imagined and
applied (Kotzé, 2014). Arguably, the Anthropocene demands a normative
response that is propelled both by moral culpability within human systems for
bringing the Earth system to the edge of collapse, and the knowledge that
humans are the only potential agents of change on the scale required (ibid.).
Legal recognition of the rights of nature is an emerging approach to reor-
ienting the way law protects the environment. This doctrine reframes nature
as a subject of rights, rather than an object of human interests. The concept
of nature as a legally recognised right-holder has started to manifest in laws
enacted across the globe, from Ecuador to Aotearoa New Zealand, from the
United States of America to India, and beyond. Although not directly derived
from the concept, this chapter asserts that the rights of nature can (and
should) be coherently integrated into and explored within the contextual fra-
mework of the Anthropocene and ESL.
This chapter argues that emerging rights of nature theory, legal instruments
and jurisprudence express qualities of ESL and, reciprocally, that nature rights
can illuminate critical questions about the values and normative orientations of
ESL. First, it provides a brief overview of the rights of nature doctrine and the
emergence of nature rights law around the world. The chapter then proceeds to
explore three normative themes that are pivotal to emerging conceptions of
ESL: (1) promoting an eco-centric approach; (2) embracing complexity,
broadly construed; and (3) adopting a planetary perspective. It sketches out a
range of ways in which the rights of nature both express these objectives and
point the way towards sustainable, adapted law for the Anthropocene. In doing
so, it opens up pathways for future, deeper exploration of these themes, their
manifestations in nature rights, and obstacles to their realisation through this
doctrine, that exceed the scope of this brief, exploratory chapter. It also sug-
gests that a further task in developing ESL should be to interrogate the concept
of the Anthropocene, and that the rights of nature doctrine can facilitate this
critical engagement by its example of normative positioning around this con-
cept. The chapter concludes that ESL and the rights of nature are com-
plementary and mutually enriching conceptual frameworks that can benefit
from cross-pollination and integrated research agendas as part of the global
enterprise to elaborate a new Earth law for the Anthropocene. Situated (as is
this collection) in the early stages of development of the discipline of ESL, the
objective of this chapter is to encourage and facilitate fruitful dialogue between
ESL and rights of nature discourse.
Embracing complexity
Early discussions of ESL, and explorations of environmental law in the
Anthropocene more broadly, have elucidated a range of adaptations required
to sustain the purpose and function of law that can loosely be grouped under
the concept of embracing complexity. These include overcoming the tendency
in environmental law to silo or compartmentalise issues instead of
Rights of nature as an expression of ESL 117
acknowledging and responding to their interrelatedness (Kim and Bossel-
mann, 2013); rejecting state-centrism in international law (Kotzé and Kim,
2019), reflecting instead the planetary and transboundary nature of environ-
mental issues; and anticipating and responding to uncertainty, unpredict-
ability, non-linearity and rapid ecological change (Kotzé, 2019).
A planetary perspective
A central tenet – perhaps the central proposition (Kotzé and Kim, 2019) – of
ESL is the imperative that (environmental) law must embrace a planetary
perspective. This idea is fundamental to the conceptual framework of ESG,
which responds to the impact of human activities on planetary systems
(Biermann, 2014) rather than on ‘isolated elements of global change’ (Bier-
mann et al., 2010, p. 279). Taking their lead from Earth system science, ESG
and law contemplate the Earth as ‘a single, dynamic, integrated system’, as
‘the Earth taken as a whole in a constant state of movement driven by inter-
connected cycles and forces’, and not ‘a collection of ecosystems’ (Hamilton,
2016, p. 94). It is argued therefore that ‘addressing the vulnerability of the
entire Earth system must become a central concern of and objective for Earth
system law’ (Kotzé, 2019, p. 7). In contrast to environmental law, with its jur-
isdictional constraints, silos and tendency to separate human and ecological
factors, ‘Lex Anthropocenae … hints at a transformed type of law grounded in
and focused on the entire Earth’ (Kotzé and French, 2018, p. 818).
Kotzé and Kim suggest that the objective of the ESL conceptual frame-
work is to develop planetary earth law, defined as ‘Earth-centred law for
governance by and for all living beings from a planetary perspective’ (2019, p.
7). Emphasising a need to redefine the geography of law in the Anthropocene,
they argue that planetary systems-based law incorporates scientifically deter-
mined planetary boundaries to determine a safe operating space (Rockström
et al., 2009) that ‘acknowledges both the existence of an ecological ceiling and
of a social foundation’ (Kotzé and Kim, 2019, p. 7). Since its publication in
120 Alice Bleby
2009, scholars have been examining the implications of integrating the pla-
netary boundaries framework into law and governance (Biermann, 2012;
Galaz et al., 2012; Fernández and Malwé, 2019; Kim and Bosselmann, 2015),
and their explorations will continue to inform the development of ESL.
There has been some early discussion of how the rights of nature doctrine
may incorporate the planetary boundaries. Maloney (2014) argues that com-
bining the principles of Earth jurisprudence with the planetary boundaries
creates specific parameters or upper limits that help identify what is necessary
to preserve ecological integrity. Scientific insights from investigating the pla-
netary boundaries could inform assessments of where nature’s rights have
been breached based on planetary impacts, and also help develop a richer
understanding of what a right to thrive or flourish means for nature in the
context of the Earth system. The success of this attempted integration may
depend on the extent to which the planetary boundaries framework can adopt
an eco-centric perspective beyond its current, explicitly anthropocentric focus
(Cornell, 2012).
Most rights of nature instruments are enacted to protect nature within a
particular jurisdiction, either because the ecosystem in question is contained
within that jurisdiction (Rodgers, 2017; O’Donnell, 2018) or because of jur-
isdictional limits on law-making power. An ordinance of the municipality of
Santa Monica, California, states, for example, that ‘Natural communities and
ecosystems possess fundamental and inalienable rights to exist and flourish’
(Ordinance No. 2421) (City Council of Santa Monica, 2013). However, some
take a more expansive approach – the Constitution of Ecuador grants rights
to nature, or Pacha Mama and there are hints of a planetary perspective in
the elaboration upon this nature as being ‘where life is reproduced and
occurs’ (Republic of Ecuador, 2008). Similarly, references to Mother Earth in
Bolivian rights of nature legislation invoke a planetary whole (Bolivian Gov-
ernment, 2010, Law 71; 2012, Law 300,). These references are of a general
nature, and only explicit in some nature rights instruments. In practice, the
application of these instruments is constrained to the jurisdiction in which
they are enacted. This was a question at issue in the State’s appeal of the High
Court of Uttarakhand’s decision in the Ganges and Yamuna Case, for
example (O’Donnell, 2018). However, the rights of nature doctrine is not
incompatible with a planetary perspective, and arguably the implication of
universality implicit in a rights-based legal framework, albeit rejected in some
quarters (Good, 2013), supports a planetary approach.
Incorporating a planetary perspective into law, including into rights of nature
laws, is a highly complex task. Critiques of the planetary boundaries note that
they are difficult or impossible to operationalise at the sub-global or local level,
and that in some cases they can elide local environmental problems or land-
scape-scale imperatives that are nevertheless critical to ecological flourishing
(Montoya et al., 2018). Similar criticisms could be levelled at the promotion of
a planetary approach within ESL. Proposals for law reform, such as Kim and
Bosselmann’s argument for a new grundnorm for international environmental
Rights of nature as an expression of ESL 121
law, and investigation of how local responses like nature rights laws reflect
global preoccupations, can inform the integration of a planetary perspective
into law, a process that is likely to be iterative and incremental (Kim and Bos-
selmann, 2013; 2015).
Critical perspectives on the Anthropocene highlight the potential homo-
genising effect of a planetary or Earth system perspective. The following section
briefly considers this kind of critique, and the way in which rights of nature may
shape the normative contours of ESL in response.
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Introduction
The non-human world is not widely acknowledged in mainstream interna-
tional law, however, recently there has been a resurgence of interest in various
ways of incorporating the non-human into thinking and practice. In addition,
there have been parallel or synchronous trends towards changing the focus of
international and environmental law to recognise a wider corpus of legal
subjects: the non-human. The attention of activists towards the non-human
parallels other political developments in the last few years: the deepening of
climate change and species extinction risks and consequences, the rising voice
of Indigenous and anti-colonial movements in national and international
organisations and law, and the spread of innovative narratives about the rela-
tionships between humans and nature, for example, the ideas of the Anthro-
pocene (Gaffney and Steffen, 2017); planetary politics (Burke et al., 2016;
Chandler et al., 2018; Oelschlaeger, 2014); and Earth system governance (ESG)
(Biermann, 2014). As described in the research program of the Earth System
Governance Project (ESGP), the contextual conditions prevalent in the
Anthropocene provoke a need to rethink and develop new policy and legal
instruments for identifying global roles responsibilities (Burch et al., 2019).
Such a reconsideration is also spurred by the need for a transformative
approach in light of the increasing urgency and complexity of human impacts
on the Earth system. The latter points towards the need to ‘more fully embrace
all present and future earth system constituents including humans and the non-
human world’ in order to bring Earth system governance and ESL into closer
alignment (Kotzé and Kim, 2019, p. 5).
Collectively, these trends point towards the emergence of a new con-
ceptualisation of law, termed Earth system law (ESL), which is evolving in the
context of the growth of environmental constitutionalism and changes in
environmental rights law. In an article outlining the research agenda for ESL,
Kotzé and Kim (2019) use international environmental law as a comparative
device to elaborate key distinctions and moves from an anthropocentric
international law towards an Earth-centric transnational law for all living
beings. This chapter will build on this comparative approach by examining
DOI: 10.4324/9781003198437-11
The ethical place of the non-human world 129
various ways in which the expansion of the ethical community to include the
non-human world may inform an emergent ESL. In addition to the case of
international environmental law, the chapter will survey recent trends in
environmental constitutionalism, environmental rights, and case law, and
evaluate the representation of the non-human in these trends. It will argue
that if ESL is something distinct from international and environmental law,
then its transformative potential lies at least partially in its ability to articulate
alternative and effective normative approaches to the human/non-human
relationship.
Aldo Leopold eloquently elaborated the ethic at the heart of what he
termed the land relation in his Sand County Almanac, where he lamented that
‘there is as yet no ethic dealing with man’s [sic] relation to land and to the
animals and plants which grow upon it … the land-relation is still strictly
economic, entailing privileges but not obligations’ (Leopold, 1989, p. 238).
Just what types of status and obligations exist for the non-human world, and
how these might more centrally inform governance and law, remain vital
questions with ongoing currency and urgency. The mismatch between systems
of law and efforts at environmental protection in the context of the Anthro-
pocene are increasingly glaring and undeniable, from the failure to prevent
breaches of planetary boundaries to a persistent short-sightedness and reduc-
tionism (Kotzé and Kim, 2019). These gaps are symptomatic of a larger ethic
of anthropocentrism that fundamentally structures the edifice of law and legal
thinking about environmental problems. While there is little doubt that the
anthropocentrism of law is one of its most powerful epistemic assumptions,
law can also ‘respond to vigorous critical energies emerging in resistive
responses to patterns of injustice and environmental degradation’ (Kotzé and
Grear, 2015, p. 4). Normatively, ESL is able to introduce a novel legality with
a unique ethical framework of human-Earth enhancement, rights, and new
conceptualisations of property in harmony with an Earth-centric legal philo-
sophy in the face of these innovations, new thinking on law can be an effective
driver of changes in governance, policies and practices. Law can shape the
terms under which change happens, and an effort to more fully and coher-
ently incorporate the non-human into theory and practice can emerge
through legal deliberation. Western legal concepts and premises, such as per-
sonhood, property, and legal standing, can adapt to changes in thinking,
through the constructive evolution of their inherent ambiguities. Accordingly,
three distinct modes of change towards a more comprehensive ESL can be
identified: (1) through environmental constitutionalism; (2) through the con-
tinued and extended greening of human rights law; and (3) through increasing
synergies among diverse regimes of international law. For example, the
Whanganui River decision in New Zealand broke new ground on a legal front
and has implications globally, due to the norm leadership effect on other
jurisdictions. The pathway of building coherence between diverse regimes of
international law, with a particular focus on Indigenous law, is considered to
be the most promising, both for addressing the role of the non-human world
130 Rosalind Warner
in law and for instigating transformative changes in governance policies and
practices towards improved justice, adaptability and sustainability over time.
While law often lags, it can still lead.
Framing nature
While arguably visions of a more harmonious and deeper relationship
between humans and nature enjoy a lengthy pedigree in Western and non-
Western thinking, the explicit consideration of nature in bodies of law and
practice is relatively recent. For the purposes of brevity, this section will focus
on the developments at the international/global level, although the remainder
of the analysis will not only be confined to that level, as law is a multi-level
phenomenon with interactions between domestic, sub-national, national and
supra-national levels. Often, the language of rights has been used to frame the
discussion, either when offered as environmental rights, rights to a healthy
environment or even as non-human or nature rights (see also Bleby’s Chapter
7 in this volume). Human rights and an ethic of ecocentrism are not incom-
patible but can represent a continuum, such as is found in the Stockholm
Convention, which is said to use an anthropocentric/eco-centric approach
(Giunta, 2017). While glimpses of an alternative ethic of the non-human can
be found in these international instruments, for the most part, the Rio
Declaration (Shongwe, 2017), the Brundtland Commission Report, and out-
comes of the Earth Summit were unequivocally focused on the human, rather
than the non-human. The Brundtland Commission Report of 1987, which
coined the terminology of sustainable development, focused on human wel-
fare, including present and future generations, and proposed a pro-growth
anti-poverty position with little reference to the non-human. The Brundtland
Report had sought to resolve differences by focusing on the need for ecologi-
cally legitimate development in the Global South, and as Baker argues, to
rework the existing development philosophy with an acknowledgement of ulti-
mate limits imposed by the biosphere’s inherent ability to absorb the effects of
human activity (Baker, 2007). Neither the North nor the South were focused on
the non-human world at the Earth Summit, although the Earth Charter
affirmed ‘that all beings are interdependent and every form of life has value
regardless of its worth to human beings’ (Earth Charter, 2000, p. 1, preamble).
Consideration of framings of the human-nature relationship invites an analy-
sis of the ethics that underlie international institutions and laws. To the extent
that spiritual/ecological appreciations of wilderness and nature have been a fea-
ture of early international environmental movements and treaties around bird
migration, national parks, and species preservation, such framings draw on a
Western, and indeed, colonial, cultural well of spiritual wilderness imagery
(Callicott and Nelson, 1998; Cronon, 1996; Muir, 2001). Sustainability is some-
times cast in terms of this imagery, with its focus on limits and balance and in
some of its more ecological definitions. More technical terms such as carrying
capacity could also be interpreted in spiritual/ecological terms (Ben-Eli, 2007).
The ethical place of the non-human world 131
The spiritual dimension might be understood as one addition to the trifocal
approach of social, economic and ecological domains that is common in
many mainstream approaches (Blewitt, 2008). Earth spirituality is also a fea-
ture of many of the world’s religions and is in line with traditional Indigenous
conceptions (United Nations Secretary-General, 2016). A recent example is
found in the messages of Earth stewardship coming from the traditional great
religions, for example, Pope Francis’s Encyclical of 2015 which was ‘the first
message in Vatican history to specifically address humanity’s relationship with
the environment’ (ibid., p. 5). Earth system care and references to Mother
Earth evoke this sense of human embeddedness and a norm of obligation and
responsibility. Earth jurisprudence similarly draws upon a spiritual/reverential
attitude towards nature. In sum:
Environmental constitutionalism
Global environmental constitutionalism is a growing object of study, which
‘focuses on the manifestation of constitutional law, ideas, concepts and processes
in global environmental law and governance’ (Kotzé and Kim, 2019, p. 5). The
United Nations General Assembly Resolution 72/277 ‘Towards a Global Pact
for the Environment’ (United Nations General Assembly, 2018) is the most
recent example of this trend. This form of international environmental con-
stitutionalism has its precedents in the June 2012 UN Conference on Sustainable
Development in Rio, where the outcome document, entitled ‘The Future We
Want’ (United Nations General Assembly, 2012) explicitly recognised the Earth
and its ecosystems as the home of humanity and noted the emergence of the
rights of nature in the context of the promotion of sustainable development
(ibid.). Extending the most oft-cited definition of sustainable development as the
fulfilment of the needs of present and future generations, the document noted the
necessity to ‘promote harmony with nature’. Harmony with Nature is also
the title of a Note from the Secretary General and a series of virtual dia-
logues among experts in Earth jurisprudence begun in 2016, as well as a
United Nations General Assembly Resolution in 2009. The UN Sustain-
able Development Goal 12 (Ensure Sustainable Production and Con-
sumption) mentions the need for education and lifestyles in harmony with
nature (United Nations, 2017). These and other pronouncements are, as
Kotzé has documented, part of a strand that can be traced back in turn to
the World Charter for Nature of 1982 (Kotzé, 2014). Clearly, efforts at
creating coherent global systems of international environmental law under
the umbrella of environmental constitutionalism are not uniform but can
be widely varied in their framing of the non-human. As Kotzé argues,
there should be a differentiation between the Global Pact for the Envir-
onment and similar efforts such as the World Charter for Nature. In the
former, the Anthropocentric language of environment is favoured over
ecological integrity or even nature (ibid.).
134 Rosalind Warner
As international environmental law has begun to grapple with the implications
of the Anthropocene, and as the above attests, initiatives have emerged to better
incorporate the idea of environmental harmony. However, these efforts have
been subject to limitations that have resulted in thin international environmental
law that does not fully incorporate an ‘eco-centric ethic of ecological care’ (ibid.,
pp. 23–24). As stated by the Oslo Declaration for Ecological Law and Govern-
ance, an anthropocentric bias has made environmental claims weak and
ineffectual:
The difference between environmental law and ecological law is not merely
a matter of degree, but fundamental … The latter requires human activities
and aspirations to be determined by the need to protect the integrity of
ecological systems. Ecological integrity becomes a precondition for human
aspirations and a fundamental principle of law. In other words, ecological
law reverses the principle of human dominance over nature.
(Ecological Law and Governance Association, 2016, p. 1)
While these trends have the strength of upsetting the privileging of the human
in environmental law, and the convening power of environmental con-
stitutionalism is considerable, it remains an open question whether advances
towards a planetary understanding of law might not be a necessary pre-
condition for ESL to advance, as a whole. At the same time, the paradox of
environmental constitutionalism is that a singular focus on elevating one ver-
sion of harmony may undermine its primary advantage by neglecting more
diverse approaches, which may be as effective, and as legitimate, as any
others. As described above, to date, environmental constitutionalism has
relegated the non-human to a secondary place, thereby reducing the impact of
non-anthropocentric and non-instrumental approaches to the non-human that
might refocus the energy towards a stronger recognition and respect for the
intrinsic value of nature.
Environmental rights
A regime of environmental rights is emerging alongside the trend towards
environmental constitutionalism, such as that exemplified by the examples of
Ecuador and of Bolivia, which recently adopted constitutional provisions for
environmental rights. For the purposes of analysis, a distinction can be made
between a greening of human rights (i.e. a gradual expansion of human rights
to encompass environmental rights, such as a right to clean water) from an
analogous application of the ethical foundation of human rights to non-human
entities.
The former (greening of human rights) involves the progressive entrench-
ment of new forms of human rights in national constitutions and interna-
tional conventions, and it has proved wildly successful. Today, more than
three-quarters of the world’s national constitutions (149 out of 193) include
The ethical place of the non-human world 135
explicit references to environmental rights and/or environmental responsi-
bilities. This includes the majority of nations in Africa, Central and South
America, Asia-Pacific, Europe, and the Middle East/Central Asia (Boyd,
2014). The entrenchment of environmental rights in this vein can represent a
concerted effort to recognise a stand-alone environmental right, often expres-
sed as a right to a healthy environment or a right to environmental well-being
and may or may not involve recognition of nature rights or intrinsic value of
nature. There is a well-developed debate ongoing about whether rights law can
incorporate an ethical concern for the non-human, given its anthropocentric
biases (Bosselmann, 2015). Nevertheless, as the Ecuadorian and Bolivian
examples suggest, recognition of environmental rights may facilitate greater
recognition of the non-human by refocusing dialogue about the environmental
basis for human life and state sovereignty. Although uncertainty and ambiguity
governed responses to the inclusion of the environment in the developments
around the Rio Declaration (Shelton, 1992), as Shongwe argues, these uncer-
tainties have given way to a progressive convergence of environmental with
human rights law, exemplified by, among other things, the Arrhus Convention
on Access to Information, Public Participation in Decision Making and Access
to Justice in Environmental Matters, which includes the states recognising that
their citizens have a right to live in a healthy environment – and that they also
have to protect and improve that environment not only for present generations,
but also for those to come (Shongwe, 2017). In turn, as many countries have
incorporated aspects of the Biodiversity Convention and species protection
already into their systems of law, bringing an environmental right together with
existing species-protecting legislation may constitute a logical step towards
recognition of the intrinsic value of non-human nature. Switzerland, Brazil,
Sudan, South Sudan, the Maldives, Egypt, India, Bolivia, and Ecuador are
among those countries that include constitutional protections for species
threatened with extinction (Boyd, 2017). Ecuador’s 2008 Constitution recog-
nises both the rights of nature and of humans, thereby reinforcing the distinc-
tion between them, but places a special obligation on humans to respect the
right of nature to exist, to be valued in its own right, and to be regenerated and
restored (ibid.). Such convergence has been characterised as a greening of
human rights law.
The second approach, which is to adapt human rights itself to incorporate
analogous rights for the non-human world, has also experienced growth and
innovation. Rather than creating a new class of law or a distinct class of laws
for non-human nature or for environmental rights, the greening of human
rights or humanisation of environmental law further asks why the current pro-
visions of rights enjoyed by humans cannot simply be applied to animals and
other non-human entities. The Kerala High Court asked a similar question as
to whether the fundamental rights to which humans are granted cannot simply
be extended to animals (ibid.). Interestingly, these innovations take a different
tack from either Shongwe or Boyle in reconciling environmental rights with
human rights: the recognition and articulation of the non-human as a subject
136 Rosalind Warner
of law, policy and regulatory action. Again, there are acknowledged limitations
to this adding-in approach, particularly the potential for rights to become dis-
torted and paradoxically to be used to legitimate further destructive practices
(Bosselmann, 2015).
International human rights law often invokes the concept of legal person-
ality and legal standing to grant recognition for human rights claims, as per-
sonhood confers status, is ingrained deeply in law, notably in human rights
law (Ohlin, 2010). There is no logical link between legal personhood and the
ordinary understanding of what is a human. Legal rights are not identical to
human rights, despite the use of the term personhood. As with corporations,
legal entities are able to make contracts, own property, and make claims that
can be enforced. This last point is key, since legal rights without clear
demarcation of the responsibilities and rights of the parties that can be
enforced, especially the appointment of agents or guardians for nature, are
weak (O’Donnell and Talbot-Jones, 2017).
Significantly for the non-human world, legal personality and standing
sometimes have excluded even representatives wishing to make claims on
behalf of nature, and so personhood, while fundamental, is no guarantee of
ethical recognition and equal respect. For example, in the 1970s the Disney
Company applied for a permit to build a ski complex in the Mineral King
Valley, a glacial valley in the southern Sierra Nevada mountains. In June
1969, the Sierra Club filed a Federal suit in the Northern District of Cali-
fornia court to attempt to stop the project. In an April 1972 decision, the
Court rejected the suit on the grounds that the Sierra Club had not estab-
lished that it was suffering direct harm as a result of the Forest Service’s
actions (Lawlor, 2021). Justice, William O. Douglas, was convinced of the
Sierra Club’s initial arguments and wrote a stirring rebuttal arguing that
nature itself should have standing. Drawing on precedent which had provided
legal standing to inanimate objects such as corporations and ships Douglas
argued that ‘accepting nature’s rights and nature’s voice in the courtroom’ was a
way to protect in a lasting way the natural values which were under threat from
development. (Stone, 1972, p. 5). Although it was not successful, this rebuttal
had reverberations through the environmental movement. This experience sug-
gests, however, that little progress can be made on this front by purely relying on
the granting of personhood or legal standing alone, but that such standing
should be accompanied by the extension of additional ethical characteristics to
the non-human, analogous to those in human rights laws: especially intrinsic
value. Furthermore, as Bosselmann cogently argues, ‘using a human rights fra-
mework to provide for environmental protection cannot in itself lead to the
much-needed elevation of ecological sustainability’ (2015, p. 534).
Often, linkages with human rights draw upon a spiritual and philosophical
ethic to make the argument for nature’s right to exist. For example, Article 71
of the Constitution of Ecuador recognises the right of nature to exist, as does
the ‘Universal Declaration of Rights of Mother Earth’, adopted at the World
People’s Conference on Climate Change and the Rights of Mother Earth,
The ethical place of the non-human world 137
held in 2011. The 2012 International Union for the Conservation of Nature
(IUCN) Resolution and the IUCN World Commission on Environmental Law
proposed the formal adoption of a draft World Declaration on the Environ-
mental Rule of Law, which provides that ‘All life has the inherent right to exist’
and the International Rights of Nature Tribunal was established as part of the
Paris Accords (United Nations Secretary-General, 2016, pp. 8–11).
Similarly, this somewhat nullifies a perceived opposition between human
and natural rights, since
these rights are not in opposition to human rights: as part of Nature, our
rights are derived from those same rights. The human right to life is
meaningless if the ecosystems that sustain us do not have the legal right
to exist.
(ibid., p. 36)
In sum, a nature right to exist may be a necessary, but not sufficient, condition
for the full incorporation of nature rights within the context of an evolving rights
ethic. However, this must be able to incorporate some reflexiveness about the
existential nature of humanity and the entangled relationship with nature,
something that an eco-centric ethical viewpoint can prompt. As well, there
should be some attention given to the potential for environmental rights to
trump nature rights, since the ethical implications of the intrinsic valuation
of nature are not fully developed within the current discussion about
environmental rights.
To further this and on the global governance side, David Boyle (2012) adds
that a simple greening of existing human rights law is insufficient, given the
extremes represented by climate change, and that any recognition of an
environmental right must refer to a public interest over and above states’
rights to economic development in order to form a stand-alone right capable
of effectively balancing environmental rights against competing economic
development objectives. The question becomes how to balance various forms
of human rights, be they environmental (in the sense that these underpin
existing recognitions of economic, social and cultural rights) or economic or
social (right to development). Boyle suggests that climate change has made
these questions more acute, not less, and so by extension it is possible to
identify an emergent planetary politics of concern with global environmental
problems as corresponding with an impetus towards environmental rights
broadly conceived as distinct from the human rights regimes. Neither
Shongwe (2017) nor Boyle (2012) argue outright that human and environ-
mental rights should be conflated, just that their reconciliation is less chal-
lenging than it may appear. For Shongwe, the reconciliation takes the form of
the primacy of human rights law, and for Boyle, it takes the form of a
mechanism for articulating a public, and even planetary, interest in environ-
mental rights. To the extent that either pathway might develop a framing of
nature based on harmony that reconciles the paramountcy of intrinsic value,
138 Rosalind Warner
environmental rights law may be able to address itself to the ambiguities of
the human/non-human relationship in more transformative ways.
Indigenous Peoples (UNDRIP) that have carved out innovative spaces for the
articulation of more holistic and ambiguous governance arrangements.
This idea is not new, it was first elaborated by Aldo Leopold in his seminal
work, A Sand County Almanac as the notion of a land ethic (Leopold, 1986).
Nevertheless, it is being given a new spirit in the era of Earth system gov-
ernance, urged on by the increasingly necessary process of protection and
guided by the sense of shared futures and a common fate on the Earth for
both humans and non-humans.
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9 Legitimacy and the role of law for
social and ecological resilience
Brita Bohman
Introduction
The Earth system is facing unprecedented accelerating change in light of the
Anthropocene, affecting ecosystems on all scales (Crutzen, 2002). As a con-
sequence, the prerequisites for sustainable social systems, i.e. social resilience,
have also been fundamentally changed. This situation entails challenges for how
law can be effective both in governing the ecosystems and in upholding or fos-
tering social stability and well-being. The aim of this chapter is to analyse and
discuss the different roles of law in achieving social and ecological resilience in
the epoch of the Anthropocene, with particular focus on the role of law for social
resilience (Folke, 2006; Rockström et al., 2009; Steffen et al., 2011).
Social-ecological resilience provides an important theoretical approach
to define Earth system governance. As the concept of interconnected
social-ecological resilience acknowledges, the interplay between social and
ecological systems is an interdependent relationship where ecological resilience is
equally dependent on social resilience. On the one hand, law must be adjusted to
be able to meet ecological complexity and provide for ecological resilience. On
the other hand, law must safeguard and provide for social resilience through
features such as equity and legitimacy. The question in focus in this chapter is
how law can foster both of these two sides of the resilience concept and to what
extent these different roles of law are compatible and aligned, or perhaps con-
flicting, if they connect at all.
DOI: 10.4324/9781003198437-12
Legitimacy and the role of law: resilience 149
significant signal of unprecedented changes in the Earth system and makes a
strong argument for why significant changes must be made in the way ecosys-
tems are governed. Earth system governance and Earth system law (ESL), seen
through the Anthropocene lens, provide approaches to meet this Earth system
change from the perspective of an overarching global spatial scale (Steffen et al.,
2011). Law and governance must act on smaller scales in practice to match both
ecological and social dynamics. However, as a theoretical tool, addressing
environmental change on a global scale is useful in order to see the all-encom-
passing change and what it leads to. The planetary boundaries research ties these
perspectives together and shows the risk that all ecosystems, when seen together,
pose to the crossing of critical thresholds that could lead to large, non-linear and
potentially irreversible changes at both the local and global scales (Biermann et
al., 2016; Folke et al., 2011; Rockström et al., 2009). Such a perspective clarifies
the goals to be achieved by the operationalisation of governance on other scales
and connects local and global problems.
Legal legitimacy
In legal terms, laws are not effective if they are not broadly accepted and
regarded as legitimate. Simply put, legitimacy is connected to the willingness
to comply and act according to what is decided. Moreover, for a law to be
Legitimacy and the role of law: resilience 151
legitimate, the institution creating the laws must also be accepted as
authoritative and acting on legitimate grounds (Bernstein, 2005). Legitimacy in
this sense does not concern whether a rule or a decision is the correct one, that
is related to the effectiveness of the output or the problem-solving effectiveness.
Legitimacy is only a measure of the acceptance of the procedure for adopting a
certain rule or decision. Because of this function of legitimacy, those subject to
rules or decisions will accept them and comply (Bernstein, 2005; Bodansky,
1999). The issue of legitimacy has significant practical implications for the
future development of international environmental law and especially ESL. In
international law, legitimacy is the basis of the willingness by states or other
actors to accept institutions or treaty bodies, to include mechanisms with
authority to review compliance and make binding decisions. Besides the
increased effectiveness of laws due to increased compliance, such mechanisms
will also evidence effectiveness because they may enable other forms of law-
making that takes into account the fast-changing and unpredictable conditions
connected to the Anthropocene and the continuing Earth system changes. In
order to react to environmental changes, law needs, for example, to be equip-
ped with more adaptive and flexible mechanisms than traditional decision-
making procedures (Bodansky, 2007; Bohman, 2021; Folke, 2006; Rockström
et al., 2009; Steffen et al., 2011). Moreover, legitimacy is important in relation
to access to or distribution of resources, which may become a central issue in
the Anthropocene. The increasing complexity and uncertainty connected to the
Anthropocene pose a whole new range of challenges for legitimacy in law and
governance, while at the same time increasing the need for legitimacy and
accountability in order to be more effective, in terms both of process and of
problem solving (Biermann and Gupta, 2011). Hence, the role of law for resi-
lience must be analysed both in terms of its role in the governance of ecosys-
tems – its problem-solving capacity, directly related to the environment
(ecological resilience) – as well as in its procedural capacity – its role for gov-
erning society and creating justice (social resilience). ESL must enable and
combine both of these functions.
Social-ecological resilience
Social-ecological resilience is a theoretical framework for research on
environmental governance and management with a transdisciplinary perspec-
tive (resilience governance). With the given conditions of accelerating Earth
system changes, as stipulated by the Anthropocene, the idea of sustainability
or sustainable development is increasingly viewed as an ill-fitting description
(Benson and Craig, 2017; Davidson, 2010). Instead, social-ecological resi-
lience is regarded as a useful concept to better picture the complexity related
to Earth system changes.
Social-ecological resilience is generally described as a concept for assessing
the resistance to pressures. In an environmental context, resilience is seen as a
state where the ecosystem can cope with threats, such as pollution or deple-
tion of biological resources, and still sustain its main structures and functions,
thus avoiding collapse or abrupt change. Dramatic changes in an ecosystem
are often described as the system being pushed towards threshold effects or
passing tipping points, to illustrate how ecosystems can fall into rather
sudden drastic irregular changes, often with cascading effects (Biggs et al.,
Legitimacy and the role of law: resilience 153
2015a; Folke, 2006; Folke et al., 2002; Folke et al., 2011; Walker and Salt,
2012). Environmental problems or ecosystems do not act in a linear or fore-
seeable way in relation to the pressures from human activities or in relation to
the needs of human beings (Biggs et al., 2015a; Folke, 2006; Folke et al.,
2002; Folke et al., 2011; Walker and Salt, 2012). All this has to be taken into
account in governance.
Among the governance principles connected to social-ecological resilience,
adaptive capacity is a core feature of resilient social-ecological systems and in
resilience governance. Learning and knowledge are important components of
such an adaptive system. The aim of an adaptive approach is not only to adjust
to system change, but also to take adaptive measures to create transformative
action (Nelson et al., 2007). Other important features of resilience governance
are cross-scale action and polycentric governance structures. Acting on the
right temporal and spatial scales is necessary in response to ecosystem dynam-
ics, as is taking multiple different measures at different scales. To enable adap-
tive and cross-scale action, resilience governance emphasises the inclusion of
actors and actor groups that can both gather knowledge through monitoring
and act for transformation, based on this knowledge at all scales of the
system (Folke et al., 2005; Folke et al., 2009). Bridging organisations are
also emphasised within resilience governance. They are structures that can
coordinate and overarch gaps between different institutions and actors, or
networks of actors, in resilience governance structures. In this way, bridging
organisations make the overall institutional structures more effective (Duit
and Galaz, 2008; Galaz et al., 2008; Hahn et al., 2006). Such structures
could also bridge gaps between temporal and spatial scales.
All the features described are interconnected and interdependent and
themselves creating a complex adaptive structure. The descriptions and
chosen definitions may vary, but the features above reflect the extensive
literature in the field (Biggs et al., 2015b).
Social resilience
The resilience governance principles presented above are developed as steer-
ing principles for governance matching the ecosystems. As this section will
show, social resilience is to some extent also based on such functions. The
social systems need to establish features to adjust, transform or cope with
ecosystem change in order to be resilient and in this way also provide for
ecological resilience. However, social resilience is to a large extent also
dependent on politics, economics and a fair and legitimate governance pro-
cess. Social resilience thus needs more than just mechanisms that address the
ecosystems.
Whether social resilience is even a useful concept is the first question to
address. The concept of social resilience may hamper the possibilities of
applying social or human sciences to the challenges that society faces. Resi-
lience was originally a concept within ecology, it was not developed for the
human sciences and there is a risk that some of the theoretical complexity is
lost when fitted into this concept (Adger, 2000). Instead, it is suggested that
social resilience should be used more as a metaphor for social stability than as
a concrete measurement (Carpenter et al., 2001). This approach also fits the
purpose of this study better. The concepts, definitions and established voca-
bulary for law will thus be used to achieve a nuanced discussion.
The next section reviews how social resilience has been reflected in the scien-
tific debate and forms the basis for the study of the role of law more specifically.
Conclusion
It is of great importance to view and analyse social resilience values in a
general legal context of governance and the Anthropocene.. The identified
legal principles of equity, fairness and human rights must form the foundation
for ESL. However, law and governance in the Anthropocene must of course
also relate to, and integrate, governance principles for ecosystems.
The resilience governance principles are central in achieving ecological
resilience and must be in the basis of any governance system for the Earth
system. There are many legal functions and mechanisms that enable or con-
tribute to resilience governance in a general sense and many of them have
connections also to the social resilience features. They will form the substance
of ESL in the Anthropocene. It furthermore seems that incorporating more
pronounced legal prerequisites for social resilience with the law for general
resilience governance is important for the effectiveness of ESL.
The laws and values for social resilience connect to the resilience principles
promoting adaptivity, flexibility and knowledge, similar to resilience features
for multi-level or polycentric systems and the connections these create
between the different governance levels. Moreover, and most importantly,
social resilience features are central in relation to participation and the dis-
tribution of rights and power, access to resources and other assets that are
enabled through participation. The law for social resilience forms a good
Legitimacy and the role of law: resilience 161
ground for legitimacy and a legitimate system will be more effective also in
terms of compliance and problem-solving.
However, these findings are not a reason to review the law only in regard to
social resilience as part of the framework for general resilience governance. The
social resilience features must be lifted and addressed as values of their own, and
as significant components of ESL. Governance in the Anthropocene must rest on
the identified resilience governance principles for social-ecological resilience but
with a more pronounced position for social resilience values. ESL in the Anthro-
pocene must focus on legal mechanisms for distribution of power and resources,
as well as for general legitimacy, equality and democracy or accountability.
To conclude, a legal framework for the Anthropocene should include legal
mechanisms that respond to adaptivity and flexibility, multi-level and poly-
centric governance, stakeholder participation, and monitoring ecosystem
variables and feedbacks. Moreover, this study shows that key features for
social resilience must be included. The key features for social resilience are
related to the concepts of agency and assets and are already a fundamental part
of law and legal institutions. However, in a structure for ESL in the Anthro-
pocene, they must be addressed more directly and articulately. Moreover,
legal fairness and equity must be specifically addressed and safeguarded.
The general features that are compatible with legal fairness and equity, and
that to some extent, are established through such values, are stable, demo-
cratic and legitimate institutions; political and economic equality; equal
access to or distribution of resources.
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10 Climate (im)mobilities in migration
governance and law
Integrating an Earth systems perspective
Andrea C. Simonelli
Introduction
Interest in climate-induced migration and displacement has continued to
grow. With the lack of significant progress towards major cuts in carbon
emissions along with low levels of political ambition, the future seems poised
to inherit more of the conditions that will inevitably deteriorate many land-
scapes to the point that human habitation, in its current form, is not possible.
Scholars have taken an interest in not only the process of movement, but also
its outcomes. While climate migration will take many forms, the implications
of cross-border migration and displacement have been scrutinised due to the
lack of applicable governance structures. However, the literature evaluating
the legal, ethical, and rights-based governance gaps is continually con-
ceptualised within the cooperative UN-based system which has failed to
either solve the problem of climate change or expand its reach to assist those
being displaced by it (Simonelli, 2015). In short, answers are being sought
through the same systems which have previously failed to solve them.
Governing climate-induced migration and displacement has been set
against the state-centric power of international relations and law, which is
based on precedent and cooperation from a specific historical period. These
interactional dealings are grounded in an understanding of the post-Second
World War era. As such, the UN system has spent the last 70 plus years
struggling to adjust to the Cold War, organised terrorism, the post-9/11
world, and climate change with visible growing pains. Each new challenge
has pushed established governance and law to use a backward-looking
frame to its limit. As the impacts of climate change become more acute, it
has become clear that humans not only govern their response to the pro-
blem, but their actions can either propel or reverse its intensity. Human
actions affect all global systems, which means that simply relying on solu-
tions that only consider humans is no longer viable. Earth system govern-
ance (ESG) provides an alternative framework to integrate human/social
aspects of systems change and using the Anthropocene as the relevant
situational condition, this provides a vastly broader understanding of both
the systems of concern as well as potential solutions.
DOI: 10.4324/9781003198437-13
166 Andrea C. Simonelli
A planetary focus is helpful in the context of migration as humans are not
the only species being displaced. As climate change pushes ecosystems to
their breaking point, the flora and fauna people build their societies on will
also redistribute either naturally or through management. People and the
environment are usually considered separately, but Earth systems governance
and law’s analysis of sovereignty and cultural loss demonstrate that gaps exist
in the current structures.
UNHCR
The United Nations High Commissioner for Refugees (UNHCR) is the
intergovernmental organisation (IGO) most implicated simply through the
use of the term climate refugee. However, the current legal regime on refugees
provides only marginal protection, with no specific mandate, to climate refu-
gees. The main responsibility is placed with their home countries, which con-
tradicts the global responsibility for the victims of climate change (Biermann
and Boas, 2010). The 1951 Convention Related to the Status of Refugees
(hereafter the Refugee Convention) and its updated 1967 Protocol outline a
specific definition of refugee which is legally recognised; it is also a confirmed
obligation that guarantees a certain set of rights and privileges (Berringer,
2013). It is logical to insist on asking a current IGO with legal weight and
protectionary abilities to assist with climate-impacted populations. However,
the UNHCR’s mandate is not flexible as it stands, and its mandate continues
to be fiercely protected by its bureaucracy and leadership. The definition of
refugee is clearly outlined in the Refugee Convention as persons having a
‘well-founded fear of persecution for reasons of race, religion, nationality,
political opinion or membership in a particular social group’ (UN General
Assembly, 1951, p. 3). It does not mention environmental degradation. Using
the term refugee (in this context) is disputed and several authors (including
this one) and intergovernmental bodies suggest terms such as migrants or
displaced persons, as there is no consensus definition of climate refugees
(Biermann and Boas, 2010). Moreover, as a legal remedy, one has to cross an
international border as a criterion for consideration for refugee status, but this
may not be how those displaced by climate impacts present themselves. As
anticipatory refugees, some may recognise that their local situation will
eventually deteriorate and have the ability to relocate before they are forced to
do so (Kunz, 1973), but their ability to access the status will be questionable.
Others will not cross an international border and be considered internally
Climate (im)mobilities: migration governance 167
displaced persons (IDPs). The UNHCR has offered its guidance on IDP
issues through its consultation on the Guiding Principles on Internal Dis-
placement. These are based on internationally recognised human rights and
humanitarian rights but are not law (Simonelli, 2015). A 2004 introductory
statement specifies that ‘National authorities have the primary duty and
responsibility to provide protection and humanitarian assistance to internally
displaced within their jurisdiction’ (United Nations Office for the Coordina-
tion of Humanitarian Affairs, 2004, p. 2). The UNHCR leadership reinforced
this in 2011 when it offered to assist with developing an additional guiding
framework for climate displacement that is consistent with the Guiding Prin-
ciples while rejecting labels such as climate refugee or environmental refugee
(Simonelli, 2015). Individual countries may expand some aspects of the scope
of the Refugee Convention as it fails to recognise the risk of torture, capital
punishment, state of armed conflict, environment disasters, lack of natural
resources, family ties, illness and gender-related persecutions (Worster, 2012).
Other aspects of international human rights law have been applied to address
the protection needs of a range of non-refugees who may fall outside of the
Refugee Convention but may be unable to return to their country of origin. A
range of jurisprudence has emerged, drawing especially on the European
Convention on Human Rights (ECHR), the American Convention on
Human Rights (ACHR), and the Convention Against Torture (CAT) (Betts,
2010). While state expansion and the utilisation of additional legal instru-
ments may seem to leave space for legal applications, testing the Convention
has come up short. Ioane Teitiota, a migrant from Kiribati, filed a legal claim
with the High Court of New Zealand, to ‘migrate with dignity’ as a formal
climate refugee (Weiss, 2015), but his claim (even after appeal) was denied.
IOM
The International Organization for Migration (IOM) has also come under
pressure to expand its work to assist with climate-induced migration and dis-
placement. The organisation facilitates migration through providing advice
and services to both governments and migrants. Unlike the refugee regime,
the migration regime is not supported by a legally binding treaty (Berringer,
2013). The IOM was not established to protect migrants, but to help facilitate
their movement; as a partner to the UNHCR, its role was parallel, but dif-
ferent (Simonelli, 2015). Its primary stakeholders facilitate governance
through international agreements that provide services to both governments
and migrants (Berringer, 2013). Its role is to respond to the needs of its
member states; if a state needs advice as to how to deal with increased flows
of migrants, it reaches out to IOM to provide advice and information to its
government. Official IOM publications emphasise that climate change is
increasing the vulnerabilities of communities around the world, leading to
increased migratory flows. However, its main objective is to reduce unma-
naged migration (Simonelli, 2015), which is only helpful after displacement
168 Andrea C. Simonelli
occurs rather than being proactive. IOM is a logistical facilitator for its
member states, guided by their demands, responsive to their needs and funds
(ibid.); this puts at it at a disadvantage in assisting small members. Unable to
fund response measures for their needs, smaller states cannot get the attention
and projects that IOM can provide for its larger members. IOM is also not
responsible for migrants after they reach their final destination (Berringer,
2013). This means that local conditions and long-term assistance are outwith
theIOM’s mandate.
UNFCCC
Migration and displacement have long been concerns of the small island
states at the United Nations Framework Convention on Climate Change
(UNFCCC) meetings (Simonelli, 2018); however, the topic of displacement
did not appear in the formal negotiation text until 2010. Paragraph 14f of the
Cancun Adaptation Framework integrated ‘measures to enhance under-
standing, coordination and cooperation with regard to climate change
induced displacement, migration and planned relocation, where appropriate,
at national, regional and international levels,’ into an international instrument
(United Nations Framework Convention on Climate Change, 2010, p. 5).
While the subsection is not legally binding, it asks individual nations to
acknowledge the existence of climate change migration and displacement at
several levels of governance (Simonelli, 2018). The Warsaw International
Mechanism (WIM) was established in 2013 to create the institutional
mechanism mandated the year before by the Doha Gateway; its task is to
address loss and damage associated with both slow onset and extreme climate
events (United Nations Framework Convention on Climate Change, 2013).
The draft text coming into the Paris talks provided an option for establishing
a ‘climate change displacement coordination facility’ that could provide
emergency relief, assist in organised migration/planned relocation, and
undertake compensation (United Nations Framework Convention on Climate
Change, 2015, p. 4). However, the parties in their final decision adopting the
Paris Agreement, opted for far more tepid language, calling for a task force to
make recommendations on how to address climate-related population dis-
placement (Burns, 2016). The Draft Decision Report for the WIM for the
2018 climate talks shares this actionless language, encouraging the Executive
Committee to continue its work on mobility under its five-year work plan and
then again in the annex when it invites parties to ‘consider formulating laws,
policies and strategies, as appropriate, that reflect the importance of inte-
grated approaches to avert, minimise and address displacement related to the
adverse impacts of climate change’ and ‘to facilitate orderly, safe, regular and
responsible migration and mobility of people, as appropriate and in accor-
dance with national laws and policies, in the context of climate change’
(United Nations Framework Convention on Climate Change, 2018, pp. 4–5).
This language asks that individual states use their own laws and rely on state
Climate (im)mobilities: migration governance 169
action to remedy climate migration rather than the governance mechanism.
Most recently, the 2019 talks related to the WIM produced no further outcome
and are to commence again in 2020 (United Nations Framework Convention
on Climate Change, 2019).
It is understandable why many look to the UNHCR for guidance, it has
assisted millions of people fleeing the most desperate situations seeking the
recognition of their basic human rights. Additionally, the bureaucratic label of
refugee is universally recognised, if not for its correct legal meaning, but at
least for the implication of need and vulnerability that comes with the label
(Simonelli, 2015). The UNHCR has developed a strong bureaucracy and it
protects the integrity of its mandate against encroachment. Refugees are in
need of protection against persecution most often enforced with violence –
this is an immediate need to deal with a threat on a person’s life. As a facil-
itator of movement, the IOM organises logistics, but it is a reactionary actor
because it responds to the requests of its members. Unlike the UNHCR, IOM
membership is not the entire UN, but only 173 states. It cannot assist with
climate migration and displacement in all locations and across all places
where it may originate if its reach is not global. The UNFCCC’s WIM was
created with governance of climate migration and displacement as a specific
aim because other intergovernmental organisations did not expand their
mandates or work. This does not mean it has been effective. In the years since
its inception, the WIM has not developed to the point where it has any power
or money of its own and, as the section above states, its executive committee
has suggested that individual states act.
Each international governmental organisation has struggled to be responsive
on this issue. While international governance structures have greater capabilities
than individual states, they are not always conducive to effective outcomes
(ibid.). States navigate these spaces with their self-interest in mind and com-
promise may not provide value. There is cooperation within the global hier-
archy where some states exercise influence over other states, and organisations
exercise influence over their members (Lake, 2010). Those who participate in
intergovernmental organisations are exposed to norms which generate a type of
social capital and create a set of network links among nations (Dorussen and
Ward, 2008). International cooperation between those who are used to working
together should be easier because these states develop a sense of reciprocity.
However, the social capital in the UN is not a clique of the few, but a meeting
of the all. Larger states with money and military capacity tend to steer the
agendas to their liking; their power can be coercion, persuasion or aid. None-
theless, the UN system and its partner IOM have created space for continual
network iterations over the course of almost 70 years and those same actors
have come together on this issue. Over this time, each organisation has refused
to take on responsibility for climate displacement until the climate change
regime which eventually suggested that the state level consider solutions. To
date, there are no concrete plans, policies or solutions to facilitate or assist
those who may be displaced by climate change processes.
170 Andrea C. Simonelli
Governing in the Anthropocene
With current intergovernmental structures failing to initiate measures to deal
with this growing problem, there is reason to ask, what is failing, is it the
structures or the conception of the world that they were built on? Climate
change is fairly new (in the course of human history) with UN-based govern-
ance structures being only slightly older. However, the UN system was built on
the heels of the Second World War when it became apparent that cooperation
needed to play a leading role to state sovereignty. These structures were tested
through the Cold War and the bi-polar power struggle between the US and the
USSR. With the US winning out, so did its preferences and agenda – world
politics may change, but the stability of atmospheric gases, terrestrial systems,
and ocean temperatures was never in question.
As a species, humans have been able impact the entirety of the systems they
depend on to survive in an adverse manner. Paul Cutzen’s (2002) essay intro-
ducing the Anthropocene has made humans think about industrial develop-
ment and its externalities. Some have argued when in time the pivotal point
has occurred. A review by Lewis and Maslin (2015) offers several approaches
which define the Anthropocene, focusing on the impact of fire, preindustrial
farming, socio-metabolism, and industrial technologies. They make the case
that there are data markers which indicate that either 1610 or 1964 would
mark such a beginning; one indicating the impact Europe had on the New
World through unequal power, fossil fuels, and global trade and the other
being the entry into the nuclear age (ibid.). While distinct from Cutzen’s reli-
ance on the CO2 trapped in polar ice coinciding with the 1784 steam engine
invention (Cutzen, 2002), each suggests humans’ industrial prowess and
global reach through western ideas of economic advancement and military
expansion. Zalasiewicz et al. (2008) argue that there is strong evidence to
suggest the Holocene is over, and argue the Anthropocene is still to peak as
western development and the growth of India and China are far from over;
however, they did not disagree that the 1960s is a practical starting point even
if the mid-1800s may have more utility. Timelines, while imprecise, bear some
importance. If the natural record can show when human activity began
creating global atmospheric changes, it becomes apparent that the kind of
activities the West exported to the rest of globe were never sustainable. This
also has implications for historic responsibility; if those nations began pol-
luting first, they may be liable for paying for more damages and assisting
more displaced people/s in the long term.
However, the Anthropocene as a concept is not without its own problems.
It is paradoxical and disturbing that the growing acknowledgement of the
impact of societal forces on the biosphere should be couched in terms of a
narrative that is completely dominated by natural science (Malm and Horn-
borg, 2014), as if the natural sciences understand the complexities of the
humanities. There is a reason that governing science and technology tends to
come after consequences that may have been unintended by their creators, but
Climate (im)mobilities: migration governance 171
not unforeseen by those in other fields. Is it that humanity is inherently a pro-
blem for Earth, or that one segment of the privileged class of capitalists have
harnessed the potential of its limited resources for themselves by using the
labour of many others? Using the Anthropocene lens must not mask the
diversity of local and regional contexts and situations, nor the diversity and
disparities in the conditions, contexts, and distribution of wealth, consumption
and environmental impacts across human societies (Biermann et al., 2016).
Proponents of the Anthropocene argue that what really matters is that climatic
disruption originates from within the human species, even if not all of it is to
blame, and so a species-based term for the new geological epoch is warranted
(Malm and Hornborg, 2014). While is true that the disruption does come from
within the human species, it is not evenly distributed, and, more difficult for
governance, is that it comes from the most powerful. It is petro-economic
might that is shaping the planet to the detriment of all of its inhabitants. As
such, this is to realise that climate change is not just anthropogenic but socio-
genic; it has arisen as a result of temporally fluid social relations as they
materialise through the rest of nature (ibid.). Because social relations are fluid,
they can change; the nature of humans is not to inherently destroy their world.
Most humans are coerced into the systems they participate in through their
socio-economic place in the world and even then, merely 20 per cent of the
world population consumes about 77 per cent of all goods and services on the
planet Earth (Biermann et al., 2016). Not all people and communities are
equally affected by the challenges of the Anthropocene, nor are all equally able
to cope (ibid.), thus it is important to keep in mind that even defining a new
epoch should not be universalising of the human experience.
If the Anthropocene is recognised as a change in the impact/magnitude of
human systems on the natural systems of Earth (recognising that the actions
of the few drive change for the whole of humanity and the planet), the
implications for governance are much larger than current systems have ever
conceptualised. It is imperative to look to the future as well as the past, to
appreciate that wide-ranging biodiversity could emerge from different poli-
tical and ecological scenarios and to plan accordingly; targets and action
plans are necessary, but they should give scope for non-human dynamics,
multispecies deliberation and experimentation and forms of adaptive man-
agement (Lorimer, 2011). Governance solutions are also limited in as much as
some climate effects cannot be reversed on human time scales (Biermann et
al., 2016). This is exactly the case with climate displacement. Political actors
make decisions based on what will affect their political careers. Thus, acting
on climate change (or climate-induced displacement) assumes that the solu-
tion sold to constituents should also make the politician look good (Simo-
nelli, 2015). This is an intergenerational dependency, which is a novel political
challenge (Biermann, 2014). The Anthropocene comes with persistent uncer-
tainty about the causes of Earth system transformation, its impacts, the links
between various causes and response options, and the broader effects of poli-
cies as well as the interdependence of all human societies (ibid.). In short,
172 Andrea C. Simonelli
people are not equipped with the mental and emotional repertoire to deal
with such a vast scale of events (Latour, 2014) due to its nonlinear trajectory,
path-dependent power structures, and impacts beyond the human.
Governance
Of the governance systems outlined in the previous section, the UNFCCC is
the only one specifically organised to minimise the impacts of climate
change and yet, even its outcomes to date have not slowed global warming
and are not legally binding. The WIM is still a dormant mechanism,
underdeveloped and nested within several other bodies without its own
independence or funds. While once seen as the next step forward for the
institutionalisation of a migration/displacement governance mechanism, it
has since stalled. The UNFCCC works like other UN bodies, on consensus,
which means agreement is based on incremental change in order to find
agreement. However, incremental change is no longer sufficient to bring
about societal change at the level and with the speed needed to mitigate and
adapt to Earth system transformation (Biermann et al., 2012). UN institu-
tions generate norms and, while successful in some issue areas, are like other
establishments of the Holocene, complicit in the generation of the unstable
Earth system that characterises the Anthropocene (Dryzek, 2014). Extra-
activism, with attendant ecological and humanly embodied debts, is the
basis of neoliberal sustainable development models favoured by transna-
tional business (Goodman and Salleh, 2013). Creating a market for carbon
pollution means that it can be managed spontaneously by the hidden hand
of the market (Salleh, 2015); without commodification there is no incentive
to cap or trade it, the future liveability of the planet has no value. Environ-
mental governance has bought into the same market principles that have
built the problem, or, if environmental governance structures have not, they
certainly feel pressured to use them. The conventional tools of environ-
mental valuation, such as cost-benefit analysis and contingent valuation, are
marred by reductionism (ibid.); environmental goals must be mainstreamed
into global trade, investment and finance regimes so that the activities of
global economic institutions do not undermine environmental treaties
because of poor policy coherence (Biermann et al., 2012). The WIM has
additionally struggled to deal with non-economic loss and damage (NELD)
because attachment to home and culturally specific spaces cannot be eval-
uated so straightforwardly. Where the need to migrate is external, several
non-economic rights have the potential to come under threat, such as the
right to nationality, right not be expelled or deprived of entrance to one’s
territory of nationality, and the right to self-determination (Simonelli, 2015).
What is the proper amount of compensation to make up for the loss of one’s
homeland?
Climate (im)mobilities: migration governance 173
The remedy for these issues is a different conception of governance. ESG is
the interrelated and increasingly integrated system of formal and informal
rules, rule-making systems, and actor networks at all levels of human society
(from local to global) that are set up to steer societies towards preventing,
mitigating, and adapting to global and local environmental change and, in
particular, Earth system transformation, within the normative context of
sustainable development (Biermann et al., 2010). Expecting the WIM to come
up with a text that is agreeable to all UN nations, given the power that fossil
fuel interests exert in many of them, should seem like an impossible task,
especially since the UNFCCC itself cannot garner pledges itself to keep the
planetary temperature rise under 2° Centigrade (Climate Action Tracker, n.
d.). If all societies are unwilling to do the work to prevent global warming,
then they certainly will not be willing to fix subsets of its complications. Earth
system governance is not confined to states and governments as sole actors; it
is marked by participation of myriad public and private non-state actors at all
levels of decision making, ranging from networks of experts, envir-
onmentalists and multinational corporations to agencies set up by govern-
ments (Biermann, 2007). It can be formally defined as the sum of the formal
and informal rule systems and actor networks at all levels of human society
that are set up in order to influence the co-evolution of human and natural
systems in a way that secures the sustainable development of human society –
that is, a development that meets the needs of present generations without
compromising the ability of future generations to meet their own needs (ibid.).
While tenably broad, this concept demonstrates a need for human systems
at all levels to be engaged in sustainability. To be sustainable in a future full
of doubt on a course of heat and change, political and legal systems need to
internalise the main hurdle ahead: that sustainable needs to be couched with
reflexivity; the ability of a structure, process or set of ideas to change itself in
response to reflection on its performance (Dryzek, 2014). All integrative sys-
tems have to share the same purpose, which takes the development of norms
and principles and regimes. The environmental regime that developed into the
UNFCCC already has some of this. It was institutionalised around a
common issue that was not controversial in and of itself, but in terms of how
it could be fixed (Simonelli, 2015). Environmentalists, governments, business,
and civil society meet year after to year to discuss and govern the main global
environmental challenges, but then they go back to countries which treat the
environment as if it is separate from other issues. The environment is invari-
ably siloed from the economy, health care, and the like and, thus, these sys-
tems cannot be coordinated. Eco-systemic reflexivity proves to be the primary
requirement for institutions in the Anthropocene (Dryzek, 2014); for other
sectors to be effective towards a planetary goal, they need to be reconsidered
with climate outcomes in mind. In doing so, it will create a coherent frame-
work that will support transnational negotiation towards impactful climate
mitigation and adaptation. ESG describes this as an architecture, in other
words, as the meta level of governance (Biermann et al., 2010). Ecological
174 Andrea C. Simonelli
interdependence binds all nations, which creates a new dependence of all
nations on the community of all others (Biermann, 2007). Because of this,
planetary boundaries and how other government sectors impact ecological
outcomes must be integrated into all sectors. This shift in thought and action
across a myriad of systems will bring to the global negotiating table a more
integrated system, connected through outcome consideration throughout the
whole. However, this must consider all systems, not just human. The main
problem colonising western systems have with their own governance is that they
have chosen their own primacy over all others. Non-western communities
express their pride in the conservation of habitat through diverse life-affirming
value forms under customary law (Salleh, 2015); there one finds examples of
longstanding social-ecological systems that are resilient, existing in humanity’s
past (for example, agro-ecosystems) but not in industrial society (Dryzek,
2014). But in the Anthropocene, consistent with the idea that the Earth system
itself becomes recognised as a key player, the crucial entities are social-ecolo-
gical systems, rather than social systems per se. The human components of
social-ecological systems can then respond not just to human voices, but also to
the non-human components of social-ecological systems that have no voice but
to which humanity can try to listen better (Dryzek, 2014).
Effective international cooperation must be a basis for Earth system gov-
ernance in the Anthropocene. The UN system and international negotiations
do not stand in an antagonistic relationship with local action and non-state
movements (Biermann, 2014); they need to be reconceived in a manner that
further connects them. In a world of over 190 independent nation states, there
is no way around strong and effective international cooperation (ibid.); how-
ever, the rules may have to re-evaluated. This is a matter of social and envir-
onmental justice for smaller nations as well as their ability to effectively
participate in governance processes.
The UNFCCC already provides space for both large and small countries to
have a voice in these segmented discussions, but the challenge for smaller
nations is full participation due to rules favouring larger ones. Limits apply to
the number of contact group meetings that may be held simultaneously, but
this rule does not extend to informal meetings; there are frequently more than
two formal or informal meetings running simultaneously (Dryzek and Ste-
venson, 2011). Small nations are often pulled in many directions at once, not
in attendance, or have to hire outside consultants to appear on their behalf.
The secretariat covers the cost for two delegates from each least developed
country to attend UNFCCC sessions (ibid.), but with so many topics to cover
in two weeks, smaller nations are often overrun. It may be more effective to
conduct negotiations within existing institutions and split up problems into
smaller negotiation packages (Biermann et al., 2012). This would maintain
expertise in relevant areas and minimise the need to start from scratch when
smaller nations come together fully. This could mean that the WIM’s Execu-
tive Committee could have more independence to bring a fully developed
package to the UNFCCC after input from experts from the IOM and the
Climate (im)mobilities: migration governance 175
UNHCR. Then, each package can be voted on separately rather than in one
massive treaty. UNFCCC sessions often go to the last minute with negotia-
tions seeking to consolidate many sections of text into one document for
consensus, which often disadvantages smaller delegations without sufficiently
caffeinated personnel to either keep negotiating or read new copy while their
larger counterparts have fresh staff on deck.
Full body consensus has stalled and, in many cases, watered down the
UNFCCC agreements which could have furthered the progress towards a
sustainable planet. It could also be more effective (in the spirit of reflexivity)
to allow ratification with a majority of countries rather than allowing infor-
mal veto power to those with entrenched fossil fuel interests. Political systems
that rely on majority-based rule arrive at more far-reaching decisions more
quickly (Hovi and Sprintz, 2006). This would leave room for in-country acti-
vists and leadership to speak up, adding pressure to disingenuous actors. This
outsider status will also have reputational costs in other issue areas beyond
the environmental. IGOs can equalise power among nations through rules,
which are necessary if smaller nations are to be able to have their say against
those which are more powerful (Simonelli, 2015), and especially those causing
destruction of their natural resources through extraction, polluting their air,
and displacing their people. It is imperative that present and future treaties
rely more on systems of qualified majority voting in specified areas. Earth
system transformation is too urgent to be left to the veto power of single
countries (Biermann et al., 2012). However, this must be driven on trust:
allowing the Executive Committee of the WIM to provide recommendations
to the whole and then not working with, but rather undermining their ideas is
not effective. The work of the WIM is seeking justice for those who will lose
the most and who have damaged the planet the least; some are small island
states which will face eventual inundation by the sea and Indigenous com-
munities whose permafrost has now thawed. Their needs include a recon-
stitution of their lives and livelihoods which should not always been
secondary to the economies of larger polluters.
The other locus of governance that is left out is consideration for ecosystem
services that support non-humans and their ability to migrate. Planetary sys-
tems include flora and fauna, which provide food, and other provisions for
society and are more often than not, a secondary concern – if at all. Assess-
ments of NELD should consider these in tandem to human migration con-
cerns. Many plants can only thrive in certain areas and have medicinal or
culturally important roles that will be lost through migration and displace-
ment. Furthermore, as climate change is an entire planetary shift, many
plants and animals will naturally migrate as the seasons, and in turn their
food chains, become unstable. Migration in this frame is not simply the need
to accommodate the old nation state-centric view of bordered cultures, but
how governance at all levels will need to adjust to changing agricultural
zones, wetlands, and habitats. With changing landscapes comes changing
ownership and this will challenge the locales people have worked for their
176 Andrea C. Simonelli
food, logging, etc. Animal and fish migrations will put vast resources into new
jurisdictions, potentially outside the normal boundaries of those who rely on
them. ESG architectures need to be broad enough to consider how humans
not only impact their environment on a grand scale, but how communities
rely on local assets. There is, therefore, an urgent need for meta-analyses of
anticipation processes, including through a critical governance lens, by asking
first-order questions of who governs, for whom and why, and examining how
the content of anticipation processes is created in ways that shape and limit
what futures can be imagined (Burch et al., 2019). Climate projections pro-
vide a context for anticipatory governance, it is important to consider the
challenges ahead as they relate to the interconnectedness of habitat to
migration for both societies and non-human actors.
Law
Enforceable and equal application of law, no matter where the claimant has
filed, is an important reason that the UNHCR has been consistently impli-
cated as an agency to protect (or at least guide) the process forward on cli-
mate migration and displacement. Since the ratification of the Convention,
asylum seekers are able to count on a process and certain privileges if they are
successful. IGOs govern through both hard and soft law; hard being enforce-
able law as ratified by individual states and soft being not binding but often
customary or enforced by norms and reputation at the international level.
Most migration governance has been soft law; this includes the guidance from
the UNHCR and the IOM on climate migration. While based on long-
standing human rights and considerations, it lacks practical methods for
enforcement. Hard law is the most difficult to achieve in that an instrument
needs ratification and inclusion in national law to be universally applicable.
This has also been the promise of the WIM; if its suggestions are accepted by
the parties and integrated into a treaty, it can be legalised (Simonelli, 2015).
However, formalising the WIM has been the problem. Consensus voting on
full treaty packages has relegated the WIM to being a sacrifice rather than a
central feature. International law currently incorporates only a few systems of
qualified majority voting that weigh votes according to the size or relative
importance of countries. These include double-weighted majority voting that
grants equal veto power to north and south (e.g., the treaties on stratospheric
ozone depletion), and special voting rights for countries with particular
interests or resources, such as in shipping (e.g., the International Maritime
Organization) or finance (e.g., the World Bank or the International Monetary
Fund) (Biermann et al., 2012). As mentioned above, consensus voting does
have its limitations.
Imagination allows a transcending of such assumptions and long-estab-
lished myths about problem-solving, including the assumption that wicked
problems remain unsolved due to complexity, rather than because of the
habitual, unimaginative or politically prescient filtering out of simple but
Climate (im)mobilities: migration governance 177
unconventional solutions (Burch et al., 2019). One way that law can be
reimagined is to consider how sub-state entities (such as cities or states) can
ratify and participate in international treaties. This is a reinterpretation of a
scalar hierarchy but would allow subunits to participate in more autonomous
self-governance if they so choose to extend rights to migrants beyond what
their national governments so choose. Many cities have already joined the
UN Climate Protection (CCP) campaign by passing a resolution pledging to
reduce greenhouse gas emissions from their local government operations and
throughout their communities (Cities for Climate Protection Campaign,
2001); this can be done in other issue areas such as migration.
In a prescriptive sense, ESL should be more closely aligned with the
Anthropocene’s normative demands to the extent that it seeks to improve the
ability of law to better respond to the deeply intertwined Earth system and its
many complex socio-ecological challenges (Kotzé and Kim, 2019). To make
law more responsive, it needs to address questions of law that have yet to be
answered through imagination, adaptiveness and reflexivity. How climate
futures will play out is still uncertain, but this needs to be a built-in compo-
nent of newly developed legal instruments. For those becoming displaced
entirely from their homelands, the rights of the stateless are unclear and often
not enforced (Simonelli, 2015). It is not that they are not equal before the law,
but that no law exists for them (Arendt, 1951). The meaning of full state loss
is a legal demand that necessitates an answer in the Anthropocene. While the
Peace of Westphalia (1648) indicated statehood conditional based on terri-
tory, the 1933 Montevideo Convention also adds a permanent population and
capacity to enter into agreements with other states and some scholars argue
that even this has been loosely applied (Simonelli, 2015). The right to
nationality may need to be coupled with sovereignty issues and self-govern-
ance. Such as in a more robust semi-autonomous region, if an entire nation
needs to relocate, they keep a small sub-state apparatus for the maintenance
of their previous political relationships, their relationship with their new
homeland, and to govern whatever old jurisdictions remain. This is directly
related to the right to self-determination in that a small nation should not
have to be swallowed by the sovereignty of a larger one by the sheer geo-
graphical luck of having higher ground. A strong form would ensure social
justice for the migrating country.
Considering the sheer enormity of climate changes, the right not to be
expelled or deprived of entrance to one’s territory of nationality is not a right
that can easily be ensured. Millions of people will not have the resources to
either adapt in situ or safely return to places severely degraded. Recouping
environmental justice in this instance has been discussed in terms of liability
and compensation – two words which have distinct legal meaning and yet
have stalled international negotiations for decades. As the argument has been
presented, in a world of polluters pay, it is the liable countries that need to
take responsibility for climate refugees (Ahmed, 2018). However, these
nations are reliant on fossil fuel, and some have tended to be xenophobic
178 Andrea C. Simonelli
towards outsiders in recent years. This has led to pressure to make sure that
they are not held liable for climate migration and displacement in the
UNFCCC. The desire of small nations to try to push for compensation
facilitated a 22-year gap in the development for a mechanism to address loss
and damage (the WIM) and wasn’t attempted again until the draft document
in the run-up to the Paris Conference of the Parties (COP25) (Simonelli,
2015). Forcing nations that want no part in assisting those they have harmed
needs to be understood in terms of the reconstitution of lives and livelihoods
rather than monetary compensation. Non-economic loss cannot be accounted
for with payments, but with the redevelopment of communities in locations
that are most like home, with ecosystems that will support similar plants and
animals. Not that sustainable development in this manner will be inexpensive,
but non-retributive. Again, this is where a functioning and legally indepen-
dent WIM could be of most use; legal frameworks define the scope of
responsibility which IGOs have (ibid.). A fund for community relocation
under the WIM is less directly penalising than direct liability but can still be
proportional by emissions. This fund can also be subsidised through migrat-
ing states’ local economic resources; some states may continue to have
booming Exclusive Economic Zones (EEZ) even after their land ceases to
exist. By expanding the definition of territory in the UN Convention on the
Law of the Seas (UN General Assembly, 1982) to include submerged terri-
tory, sovereign island states will be able to continue supporting their citizens
through fishing licensing. Doing so will also allow a national fleet to fish if
they so choose.
Conclusion
Current IGOs are limited in their ability to govern climate migration and
displacement by either mandate, structure, or developmental infancy. This is a
feature of the way that governance is couched in historical ways of thinking,
set in the past, path-dependent on assumptions of political change but ecolo-
gical stability. With the realisation that human activity has changed this, the
Anthropocene is the new normal. Unstable planetary systems mean that one
positive environmental treaty cannot suffice as business as usual prevails.
Successfully navigating the years ahead necessitates an innovative perspective
inclusive of both human and ecological systems; Earth systems governance
and law have a broad application and consider the many ways in which inte-
gration is needed. Normative reforms were explored through an ESL response
to existing governance and legal gaps, such as sovereignty and self-govern-
ance, social and environmental justice for migrants, and cultural loss. This is,
however, just a starting point. The reforms here need to be fully developed
and considered as alternatives to the currently stalled legal and governance
systems. Most importantly, systems change begins with individual change.
Without internalising an ethical responsibility for the other as condition of
the Anthropocene, nothing else will matter. There is a need to rethink systems
Climate (im)mobilities: migration governance 179
to prevent harm and derive new legal remedies for anticipatory problems, the
current paradigm is not enough, and every person needs to act as if they are
responsible to and for each other. Many Indigenous societies already do this. The
problems of the Anthropocene are far more complex than previous environ-
mental disruptions; surviving it will take reflexibility, adaptability, and imagina-
tion. Past conceptions of governance, law, and power can no longer be relied
upon: they brought humanity to this point; with those most immediately being
displaced by climate impacts still legally immobile.
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Zalasiewicz, J., Williams, M., Smith, A., Barry, T. L., Coe, A. L., et al.2008. Are we
now living in the Anthropocene? GSA Today, 18, 4.
This Part examines the transformative pathways ESL should develop and the
extent to which adaptive legal systems can serve as a transformative concept
for law in the Anthropocene.
DOI: 10.4324/9781003198437-14
11 The Earth system, the orbit, and
international law
The cosmolegal proposal
Elena Cirkovic
Introduction
This contribution focuses on non-human agency in the context of environmental
degradation in the Earth system and the Earth’s orbit (EO). It looks at space
environmentalism and the limits of international law’s capacity to address sus-
tainability in the Earth system and outer space (Cirkovic, forthcoming). While
the ongoing debates on how best to mitigate, regulate and stop climate change
have not reached any conclusions in international law, human activities in outer
space have also resulted in anthropogenic contamination, such as orbital debris.
Contemporary human activities in outer space reveal the state commercial nexus
in international law, and the centuries-old tradition of dominium, imperium, and
commercium liberum. They also show an engagement with sustainable and
cooperative activities, including scientific research, space-based observations of
the Earth system.
The chapter will be divided into two sections. First, it will provide a brief
overview of the legal instruments applicable to outer space and space envir-
onmentalism. The second section will elaborate on a theoretical proposal
conceptualised as the cosmo-legal (or the cosmolegal). With the example of
the relationship between law, orbital space, and the Earth system, the cos-
molegal approach provides an alternative for thinking about all entities and/
or spaces/domains considered to be non-human. The cosmolegal proposal is
rooted in transdisciplinary scholarship, plural experiences, and knowledges.
Furthermore, it is intended to enhance the educational efforts that seek to
reconnect the human with all that is imagined to be non-human, in a less
asymmetrical and more anticolonial manner (both, in relation to other
humans, as well as the non-human).
The term cosmolegal allows for a shift in the imagination and anthropo-
centric understanding of the cosmos, which would not see the human, and its
laws, as a central actor of the Earth system and the cosmos, or as the apex
predator, owner and manager, of all it can reach and appropriate. Rather, the
human species is only one of the actors in the cosmos, known and unknown.
Cosmolegality implies that human-made laws would need to recognise the
fundamental conjectures and limits of the international legal architecture.
DOI: 10.4324/9781003198437-15
186 Elena Cirkovic
Phenomena such as orbital debris do not have a predictable outcome regard-
ing their impact on human survival and global governance. To foster the
exchange of best practices in the use of outer space technologies for the pur-
pose of climate change monitoring, mitigation and/or climate-related adapta-
tion activities, this chapter argues for a more inclusive epistemic approach to
norm production and law-making. As legal practitioners have yet to be able
to see, hear and understand the world beyond the confines of formal anthro-
pogenic and anthropocentric law-making, there is a need for approaches that
would be more pluralistic and inclusive of plural variations in cognitive
forms, ways of knowing and thinking. Due to the intensification of commer-
cial uses of outer space, and open use of language such as the colonisation of
outer space (Mandelbaum, 2018; Prescod-Weinstein et al., 2020), new reg-
ulation will need to account for the legacy of colonial experiences and the
importance of including plural knowledges for the protection of environments
in the Earth system and outer space.
Orbital debris
Functional spacecraft share the near-Earth environment with natural
meteoroids and the orbital debris that has been generated by past space
activities. Meteoroids orbit the Sun and rapidly pass through and leave the
near-Earth region (or burn up in the Earth’s atmosphere), resulting in a fairly
continual flux of meteoroids on spacecraft in Earth orbit (Witze, 2018). In
contrast, artificial debris objects (including non-functional spacecraft) orbit
the Earth and will remain in orbit until atmospheric drag and other perturb-
ing forces eventually cause their orbits to decay into the atmosphere (ibid.).
Since atmospheric drag decreases as altitude increases, large debris in orbits
above about 600 km can remain in orbit for even millions of years (ibid.).
There is no definite legal definition of orbital debris in international law,
and it is generally understood to be human-made objects, including their
fragments and parts, which are in orbital space, re-entering the Earth’s
atmosphere, or reaching the Earth’s surface, that are non-functional with no
reasonable expectation of being able to assume their intended functions or
any other functions for which they are or can be authorised (UN Committee
on the Peaceful Uses of Outer Space: Scientific and Technical Subcommittee,
2007, background, para 1). As the functional status of a space object does
not, as such, affect the applicability of rules of international space law, orbital
debris remains subject to the same rules, which apply to space objects.
Some spacefaring states have voluntarily implemented non-binding space
debris mitigation measures into their national space laws and technical stan-
dards as mandatory requirements (UN Office for Outer Space Affairs, 2021).
For other states, such recommendatory instruments can serve as an indication
of an expected standard of due regard. In implementing space debris mitigation
measures on a voluntary basis, states are recommended to follow some of the
existing non-binding guidelines and technical standards, which have been
developed by international governmental and non-governmental organisations
and other international forums.
The OST allows for outer space, which includes the Moon as well as celes-
tial bodies, to be available for the exploration of, and use by, states, and sti-
pulates that they bear international responsibility for national activities that
involve space debris and to ensure these activities also conform with the pro-
visions laid down in the treaty. In addition, the study and exploration of outer
space are to be undertaken in a manner that avoids harmful contamination,
and that the states develop appropriate measures to make sure this remains
the case (United Nations, 1967). The 1979 Moon Agreement (Agreement
188 Elena Cirkovic
Governing the Activities of States on the Moon and Other Celestial Bodies)
which entered into force in 1984, contains a similar provision – requiring
states exploring and making use of the Moon, to take measures to avoid dis-
rupting its environment from harmful contamination. Importantly, space
debris has an impact on the fragility of the outer space environment and is
qualified as contamination (United Nations, 1979).
In 2007, the UN General Assembly endorsed the Space Debris Mitigation
Guidelines of the UN Committee on the Peaceful Uses of Outer Space
(COPUOS) and agreed that these voluntary guidelines reflected the existing
practices as developed by a number of national and international organisa-
tions (UN Committee on the Peaceful Uses of Outer Space, 2010); including
those developed subsequently, under the US Trump administration, for
example, (Trump, 2018). In June 2019, the Guidelines for the Long-term
Sustainability of Outer Space Activities of the Committee on the Peaceful
Uses of Outer Space (LTS Guidelines) were adopted (UN Committee on the
Peaceful Uses of Outer Space, 2019). The Guidelines provide guidance on the
policy and regulatory framework for space activities; safety of space opera-
tions; international cooperation, capacity building and awareness; and scien-
tific and technical research and development. Echoing the intensified
international discussions on space debris, UNOOSA and the United King-
dom signed an agreement to promote space sustainability (UNOOSA, 2021).
The agreement between UNOOSA and the UK intends to encourage all
actors to implement the LTS guidelines.
Planetary protection
Planetary protection aims to prevent contamination between Earth and other
bodies in the context of space exploration missions. To ensure that scientific
investment in space exploration is not compromised by cross-contamination,
special care needs to be taken by all actors and stakeholders. COSPAR has
concerned itself with questions of biological contamination and spaceflight
since its very inception. Generally, the basic mandate of planetary protection is
to avoid biological and organic contamination of outer solar system bodies, in
particular icy moons, to avoid jeopardising the search for extra-terrestrial life,
precursors and remnants and, to protect Earth and its biosphere from extra-
terrestrial sources of contamination. The process of determining planetary
protection regulations for a specific mission depends on the target body (e.g.,
Mars vs the Moon); the type of encounter (e.g., Orbiter vs Lander) and specific
goals (e.g., to see if the target body has/had life). Each mission presents unique
contamination challenges and therefore has different requirements.
NASA, for instance, checks biological materials that are being sent on each
mission to the lunar surface. This is not mandated by international law, but
most spacefaring nations adhere to this policy of planetary protection under
guidelines established by COSPAR. The guidelines dictate how much biolo-
gical material can be sent into space based on its destination. COSPAR
maintains and promulgates this policy on planetary protection for the refer-
ence of spacefaring nations, both as an international standard on procedures
to avoid organic constituent and biological contamination in space explora-
tion, and to provide accepted guidelines in this area to guide compliance with
the wording of the OST (United Nations, 1967) and other relevant interna-
tional agreements.
Some astronomy scholars have warned against the use of colonial frameworks in
outer space, in relation to other planets (Mandelbaum, 2018; Prescod-Weinstein
et al., 2020). However, while collaborations between space agencies such as
NASA aim to include Indigenous knowledges, the status of Indigenous peo-
ples as non-state actors in international law has implications at the level of
intergovernmental decision making (Cirkovic, 2006).
The rhetoric of a right to space highlighted by some corners of the outer
space sector reflects not only anthropocentric assumptions, but also specific
values of imperium and commercium. Outer space is imagined as a limitless
resource – a space frontier. The metaphor of the frontier, with its associated
images of pioneering, homesteading, claim staking and taming, has been
persistent in the history of international law and colonialism. The following
section briefly refers to one alternative to such thinking as represented by the
cosmic hunt narrative. While this skylore is present with variations in different
human traditions of thinking, this chapter will narrow to focus on just one
example of the Siberian context.
Conclusion
As of 21 October 2020, eight countries have signed the NASA proposed
Artemis Accords, a set of guidelines surrounding the Artemis Program for
crewed exploration of the Moon. The United Kingdom, Italy, Australia,
Canada, Japan, Luxembourg, the United Arab Emirates and the US are all
participants in the project, which aims to establish a crewed lunar base by
2030. The accords are bilateral agreements. By establishing international legal
practice in the area of outer space regulation, they could have a significant
influence on any subsequent governance framework for activities in outer
space. The promotion of the accords outside of the existing channels of
international space law poses a challenge to the existing international law of
outer space.
The general proposal of this chapter aims to unsettle what seems to be
knowable, while at the same time embodying a normative, and admittedly,
finite and preconfigured objective that focuses on protection (or mitigation
and prevention of further environmental degradation) of the Earth system
and beyond, on a planetary scale. What might be the use of such thinking? In
order to answer this question, at least partially, transdisciplinary approaches
are necessary. The cosmolegal proposal hopes to contribute to the broader
socio-legal scholarship because it will seek to provide an alternative to the
current dominant conceptualisations of law. The ongoing assumption is that
humanity has an endless capacity to adapt and thrive through scientific and
technological inventions, even in the context of global warming, or in outer
space conditions. However, extreme spaces that are not inherently friendly to
human life: such as outer space, the deep seas, or extremities of the polar
regions, help reveal that such favourable outcomes are not at all pre-
determined. In practice, cosmolegal thinking aims to upgrade legal studies
Earth system, orbit: the cosmolegal proposal 201
through engaged transdisciplinary work and propose a legal model that
prioritises the Earth system at the planetary level. Interdisciplinarity is at the
core of this proposal, as its aim is not only to push the boundaries of current
legal thinking and practice, but to reverse its normative architecture. Instead
of assuming that international law can be unlimited and intergalactic, cos-
molegality seeks to extend a different kind of normativity, which would move
beyond the social situatedness of the law among nations, or international. The
wealth of critical legal scholarship can also help interdisciplinary exploring of
the likely conceptual changes that may be triggered and also in understanding
the limits of the law’s immanent possibilities to facilitate these adaptive
processes.
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12 Integrating the Mexican water law into
the Earth system law perspective
Gabriel Lopez Porras
Introduction
The notion of the Anthropocene as a new geological epoch has two major
implications. First, the identification of human activities as the main driving
force for Earth’s change (Crutzen and Stoermer, 2000). Second, that because
of that, the planetary dynamics do not have the characteristics of harmony,
stability and continuity that dominated in the Holocene (Steffen et al., 2020,
p. 54). The Anthropocene is a key metanarrative for delineating the planet’s
natural history, recognising humans’ role in the emergence of a new epoch,
and establishing scientific and political duties for steering the future trajectory
of the Earth (Chernilo, 2017). Accordingly, the need for an Earth system
perspective to improve understanding ‘of the complex interactions between
the physical–biological–chemical Earth system and global societies’ (Shapiro
et al., 2010, p. 1378) is paramount in providing scientific support for policy
decisions (e.g., protection of all living forms or the conservation of water
ecosystem services) and strategies for better navigating the Anthropocene.
The Earth system is considered ‘a single, planetary‐level complex system,
with a multitude of interacting biotic and abiotic components’ (Steffen et al.,
2016, p. 325). Therefore, an Earth system perspective embraces a planetary
scale (from its core to the atmosphere) for analysing all cross-level and non-
linear dynamics, including, for instance, all the bio-geochemical processes or
human-induced impacts as driving forces in Earth’s pathways (Hamilton,
2016). Aiming to better understand the structure and functioning of the Earth
system, Earth system science focuses on analysing global changes, their
impacts and risks, and other phenomena, such as climate change and biodi-
versity loss (Steffen et al., 2020). Yet, improving the understanding of the
Earth system does not guarantee its protection. Protecting the planet requires
the imposition of limits and safeguards in relation to the scientific knowledge
that is continuously generated, for which fundamental change in current
environmental policies and laws which have not been able to prevent social
and ecological crises is needed.
There are three main challenges that the anthropocentric, state-centric,
reductionist and linear nature of environmental laws have not been able to
DOI: 10.4324/9781003198437-16
206 Gabriel Lopez Porras
address. These consist of: (1) regulating the socio-economic and environmental
interactions among socio-ecological systems over distances (also known as
telecouplings); (2) providing the legal and institutional tools for increasing
adaptiveness; and (3) guaranteeing justice to all Earth system components
(Kotzé and Kim, 2019; Liu et al., 2013; Lopez Porras et al., 2019). Therefore,
there is a need for a legal and institutional setting that integrates the growing
knowledge generated by the Earth system-focused natural and social sciences
to constantly improve the way socio-ecological interactions are regulated,
increasing adaptiveness and ensuring justice.
Earth system law (ESL) has been proposed as an alternative for strengthening
Earth system protection by considering the complex, multi-level, multi-scale
(spatial and temporal) challenges when aiming to regulate the social and ecolo-
gical interplay through the law (Kotzé and Kim, 2019). Yet, enabling an ESL for
the Anthropocene, requires ‘constructing a coherent concept, theory, framework,
research program, and legislative program’ (Kotzé, 2019, p. 9) to facilitate its
design and enforcement. Drawn from the literature on resilience, vulnerability,
adaptive governance and socio-ecological systems, this chapter explores the
implications of a potential conceptual framework for ESL that aims to serve as
the theoretical basis for enabling an Earth system perspective in the law. This
conceptual framework (Figure 12.1) encompasses three overarching principles:
adaptiveness, system regulation and justice provision.
Exploring its implications for analysing the deficiencies and/or potential
that environmental-related laws have for protecting the Earth system compo-
nents, this chapter will analyse the Mexican water legal framework (MWLF)
through the ESL conceptual framework. The chapter will also investigate
whether the MWLF is or is not suitable for regulating distant socio-ecological
interactions, fostering local adaptive capacity and addressing human rights
violations and ecological deterioration.
Accordingly, this chapter focuses on discussing the structure of the MWLF,
its interactions with international agreements, and the socio-ecological impacts
derived from its enforcement, to finally discuss its potential for enabling an
Earth system perspective. Therefore, the question to be answered is the follow-
ing: does the conventional and state-centric MWLF have the potential to
enable an ESL approach, and if so, what are the legal and institutional tools
that could be used to move conventional state-centric environmental law
towards a paradigm of ESL?
Conceptual framework
Earth system literature (from natural and social sciences) highlights the need for
a better understanding of coupled human-environment dynamics, to effectively
guide Earth system pathways and avoid the current trends of ecological degra-
dation, by formulating suitable formal institutions and improving system man-
agement in the Anthropocene (Kotzé and Kim, 2019; Steffen et al., 2020). It has
been stated that issues of justice, adaptiveness, and unregulated socio-ecological
Integrating the Mexican water law into ESL 207
Adaptiveness
This refers to those processes of social change in response to shocks or stressors,
or in anticipation of potential challenges derived from environmental change or
social threats, in order to maintain system identity (its structure, feedbacks and
functions) or change it when it becomes untenable and/or endangers the sub-
sistence of other species (Burch et al., 2019; Lopez Porras et al., 2020; O’Connell
et al., 2016). There are some key elements for increasing adaptiveness, such as
knowledge generation, flexibility and cross-level collaboration. In this sense,
these processes of social change and key elements must be embedded in a sui-
table institutional setting that ensures the sustainability of human adaptiveness
and meets the implications of an ESL approach (Table 12.1). Accordingly, the
law as a source of adaptiveness must operate with the legal and institutional
principles of (1) connectivity and subsidiarity; (2) legally binding authority and
accountability; (3) financial, technical and administrative resources; and (4)
iteration and flexibility. Adaptiveness must increase human capacity to face
environmental (e.g. droughts, wildfires, pollution) and societal stressors, that is, a
condition, event, or trend that systematically affects human well-being and social
functions, undermining its adaptive capacity (e.g. corruption, human rights vio-
lations, unequal distributions of costs and benefits) (Lopez Porras et al., 2020).
System regulation
Interconnection between socio-ecological systems has been difficult to regulate
since they are constantly creating new and complex cross-scale and cross-level
dynamics. The main regulatory challenges at the Earth system level revolve
around telecouplings (the socio-economic and environmental interactions
among socio-ecological systems over distances) (Liu et al., 2013; Liu et al.,
Integrating the Mexican water law into ESL 209
Table 12.1 A comparison of the implications of an ESL approach and the institu-
tional principles of adaptiveness
Earth system law approach Principles for adaptiveness
Recognise the complex and distant inter- Connectivity and subsidiarity promote
relationships between socio-ecological sys- the coordination of diverse laws and
tems and design global multi-scalar stakeholders to face cross-level and
interventions suitable for operating across cross-scale system interactions. Enabling
geographies and time scales an Earth system law with these princi-
ples will allow the connectivity of global
and subsidiary interventions across
local, regional, and national levels to
better regulate distant socio-ecological
interactions.
Embrace complexity and the possibility of Iterative and flexible laws and policies
non-linear systemic tipping points increase the system capacity to cope and
adapt to environmental and societal
stressors in a complex and uncertain
context, to avoid crossing socio-ecologi-
cal thresholds
Avoid state-centrism by giving legitimate Giving legally binding authority along
authority to non-state actors with the required designation of finan-
cial and administrative powers to non-
state actors (e.g., water users) will
improve water decision-making pro-
cesses and strengthen law enforcement
Allow system transformation to a new Iterative and flexible laws and policies
identity by changing its socio-economic will increase human adaptive capacity
and environmental interplay and allow the transformational adapta-
tion to change untenable socio-ecologi-
cal performances in response to
changing conditions
Notes: 1 Table 12.1 is a comparison of the implications for an ESL approach established by
Kotzé (2020), and the institutional principles of adaptiveness. 2 The principles were designed
according to the adaptive governance literature (DeCaro et al., 2017; Hill Clarvis et al., 2014;
Lopez Porras et al., 2019).
2015). Breaking down the key elements of telecoupling (systems, flows, agents,
causes, and effects) makes it possible to identify and regulate socio-economic
and environmental effects of distant and cross-level interactions. This will not
only help to overcome the scale and level issues that are hindering the ability of
laws and policies to address human-induced global change, but also will over-
come the inequalities and injustices derived from economic activities that
undermine global efforts to better navigate the Anthropocene.
Justice provision
Drawn from the concept of ecological justice, defined as ‘justice of the rela-
tionship between humans and the rest of the natural world’ (Low and
210 Gabriel Lopez Porras
Gleeson, 1998, p. 2), justice from an Earth system perspective is about letting
Earth system components (the geosphere, the biosphere, and the anthropo-
sphere) reach their functions and integrity. Research has shown that including
non-human species in the scope of justice increases the likelihood of their
preservation (Lecuyer et al., 2018); consequently, including the geosphere and
biosphere in the scope of justice increases the likelihood of ensuring nature’s
needs and rights are protected. For example, the provision of justice to fresh-
water systems to guarantee their access to water ecosystem services for their
ecological functioning and not to meet human needs. This notion of justice
encompasses both justice between humans and justice between humans and
nature, avoiding the hierarchisation between human and non-human life that
gives nature a purely instrumental value for humans, challenging the notion
that the environment exists simply to serve the market (Porto-Gonçalves and
Leff, 2015; Washington et al., 2018; Wienhues, 2017).
Adaptiveness
Formal elements, such as laws, policies and standards, have the potential to
enable or hinder adaptiveness (Lopez Porras et al., 2019). Nevertheless, sci-
entists tend to overlook laws and policies as a source of adaptiveness (Gar-
mestani et al., 2019) making it difficult for policymakers to create laws to
navigate the Anthropocene. Adaptiveness refers to both the processes of social
change and the institutional setting (laws and policies) designed to facilitate
these processes. This subsection focuses on six key issues fostered by the cur-
rent MWLF that undermine adaptiveness: (1) scale mismatch; (2) water
scarcity; (3) conflicts;(4) lack of participation; (5) lack of legal tools; and (6)
ecological linearity.
Regardless of the river basin councils and local directorates, CONAGUA
has not achieved participation and collaboration (which are basic components
of adaptiveness) (Chaffin et al., 2014b). River basin councils are failed orga-
nisations that lack accountability and representativeness (ibid.) since they do
not meet the required level of water management. This mismatch between
natural resource management and the relevant ecological level is a common
issue that undermines adaptiveness (ibid.). Likewise, water scarcity under-
mines adaptiveness of natural resource-based livelihoods since it reduces
livelihood alternatives and increases conflicts over water access (Lopez Porras
et al., 2020). Nevertheless, the centralised and top-down Mexican water
management has not been able to stop water overexploitation nor strengthen
the management in water-scarce regions (Athie, 2016). In 1975, Mexico had
32 overexploited aquifers, in 1981, this number had increased to 36, in 1985,
to 80, in 1999, to 100, and, in 2013, it reached 106 (Palacios-Vélez and
Escobar-Villagrán, 2016). Nevertheless, recent research made by CONAGUA
estimates that currently there are 192 aquifers overexploited (Athie, 2016).
Increasing water overexploitation has also fostered societal conflicts,
undermining adaptiveness as they hinder the needed collaboration for social
learning and the achievement of sustainability goals (Chaffin et al., 2014b;
Chaffin et al., 2016) This has been clear, for instance, in the Rio del Carmen
watershed, in the northern state of Chihuahua, where water mismanagement
214 Gabriel Lopez Porras
and its increasing overexploitation have led to violent confrontations between
Mennonite communities and traditional Mexican farmers (Lopez Porras et al.,
2018). Given the animosities between both groups of farmers, no collaboration
has been achieved to stop and address water overexploitation in the watershed.
The 1944 rivers treaty also has been increasing pressure over northern water
resources and fostering water-related conflicts. Compliance with the treaty has
generated serious problems between farmers and CONAGUA, as farmers argue
that they have water rights and hydraulic infrastructure prior to 1944, and most
of the water that has been delivered to the United States belongs to them
(Ochoa, 2020). Farmers are uncertain about the negative effect that compliance
with the treaty may have on agriculture in the area, because CONAGUA has not
reviewed whether, with the increasing droughts, the water volume to be delivered
to the United States does not compromise farmers’ livelihoods. The treaty did
not foresee adjustments to the water volume that has to be delivered in case of
changing climate conditions. Conversely, it only states that the undelivered water
can be delivered in the next cycle, regardless of the weather uncertainties,
potential risks, and negative impacts that this may have on the northern fresh-
water systems. Recently, farmers blocked La Boquilla dam, to prevent the
floodgates from opening to deliver water to the United States, which caused
violent and mortal confrontations between farmers and the National Guard. In
the end, the treaty’s lack of adaptiveness to climate conditions is hindering any
potential collaboration in the area.
Finally, there is NAFTA. This free trade agreement opened the door to
several mining companies, which, given the large number of mining deposits,
cheap labour, low taxes, and lax regulatory frameworks, soon began mining
in Mexico. However, mining requires a vast amount of water and pollutes a
vast amount of water sources, for which reason mining companies have been
involved in a large number of social conflicts with local communities. The
socio-ecological effects of mining activities in Mexico are analysed in the next
sections. Yet, it is important to highlight that foreign mining companies have
fostered conflicts over water access, destroyed other livelihood options, and
polluted water resources, undermining local adaptive capacity (Alfie Cohen,
2015; Stoltenborg and Boelens, 2016).
As shown, MWLF does not allow water users to participate in decision-
making processes nor water management. Even with an internal structure
that should foster social participation, legal provisions have not been enough
to ensure collaboration with the water users to address water-related pro-
blems, such as pollution and depletion (Murillo-Licea and Soares-Moraes,
2013). CONAGUA has not been able to meet context-specific needs, princi-
pally due to the limitations established by the MWLF, but also because of its
lack of human resources and workload (there are more than 100,000 water
rights requests still unsettled). As a result, increasing water overexploitation
also increases conflicts over its access, undermining adaptiveness by hindering
innovation, collaboration, and social learning (Miller et al., 2010; Stringer et
al., 2006).
Integrating the Mexican water law into ESL 215
System regulation
Socio-economic and environmental interactions between distant socio-ecolo-
gical systems have caused significant impacts at local and regional level. To
better understand these interactions, Liu et al. (2013) break down key ele-
ments of telecoupling, consisting of systems (divided into sending, receiving,
and/or spill over systems), flows (the connection between systems), agents
(they facilitate or hinder the flows and may consist of corporations or gov-
ernments), causes (they produce the telecoupling and generate the effects),
and effects (environmental or socio-economic). To improve the regulation of
these system interactions, it is necessary to understand their effects and feed-
backs to see what kind of regulations are needed. Here two telecouplings will
be analysed: (1) pecan export; and (2) mining. Because the economic benefits
of mining and pecan export are evident, this section will focus on the negative
effects that are commonly not considered and that have resulted in several
socio-ecological crises.
In Sonora, a mining company had a spill of its leachate pool, which pol-
luted three rivers. The company denied its responsibility, while this environ-
mental catastrophe left seven municipalities without water, affecting 20,048
citizens and closing 322 groundwater exploitations (Alfie Cohen, 2015). In
San Luis Potosi, an Indigenous community called the Huicholes was removed
from a sacred territory that they used for their pilgrimages called Wirikuta
(which was also a protected natural area decreed by the government) to pro-
vide the mining and environmental permits to a Canadian company in that
area (ibid.). Notwithstanding, the Huichols were never consulted in the
permit issuing processes nor during the expansion of mining projects, which is
a flagrant violation of the right to participation of Indigenous communities,
as well as of the guidelines established by the International Labour Organi-
zation’s Convention No. 169 on the rights of Indigenous people’s (ILO 1989).
Another case involving a Canadian mining company, water conflicts, and
the transgression of several human rights took place in Chihuahua, Mexico.
There, Mexican farmers protested and filed formal complaints against the
illegal water exploitation in their watershed. This included a Canadian mining
company that, according to the farmers, not only was illegally extracting
water, but was also illegally extracting minerals from their farmlands (Garcia
Hernandez and Lopez Gallo, 2016). The farmers notified CONAGUA on
several occasions about the illegal water exploitation; however, the govern-
ment remained silent. Ismael Solorio and his wife Manuela Solis stood out as
leaders in the defence of water in the watershed, for which they received sev-
eral death threats, from people that, they alleged, were low-ranking cartel
members hired by employees of the mining company (Paley, 2013; 2015).
Given this situation, they requested help and protection from the Mexican
government, who ignored their requests (Garcia Hernandez and Lopez Gallo,
2016). Unfortunately, after months of death threats, in 2012, Ismael Solorio
and his wife Manuela Solis were shot point-blank (Paley, 2015). Afterwards,
216 Gabriel Lopez Porras
given the Mexican government’s lack of response to requests to provide
security to the other water defenders, the Inter-American Commission on
Human Rights had to intervene by issuing precautionary measures to other
farmers who were defending their water resources (IACHR, 2016).
This shows how poorly regulated telecouplings exacerbate local societal and
environmental stressors, which ultimately will increase local vulnerability in the
absence of adaptiveness. Inadequate regulations of these socio-economic and
environmental dynamics leave nature and local communities defenceless, which
also concerns the principle of justice provision. Aiming to improve system reg-
ulation by breaking down the five components of telecouplings that should be
within the scope of the MWLF, as Table 12.2 shows, provides a different view
of what NAFTA and pecan production really entails.
Poorly regulated telecouplings have negative effects on domestic law enfor-
cement. The growth of pecan production is related to an increase in illegal
water access, corruption, illegal conversion from grassland to cropland, civil
unrest and thus undermining the rule of law (Athie, 2016; Lopez Porras et al.,
2018; Quintana, 2013). Likewise, NAFTA has also been hindering the enfor-
cement of environmental and water legislation in Mexico as a result of
unsuitable telecoupling regulation. Under NAFTA’s Chapter 11, the Mexican
government has been sued several times and forced to pay large amounts of
compensation to foreign investors for their loss of profits, as a result of the
cancellation or revocation of environmental, water or exploitation permits
(Stoltenborg and Boelens, 2016). NAFTA allows private companies to cir-
cumvent Mexican legislation and national courts to resolve international dis-
putes Therefore, given the threat of foreign investors claiming payment for
expropriation or non-compliance, or withdrawal of investment, the Mexican
government often favours the interests of foreign investment despite socio-
ecological crises (Alfie Cohen, 2015).
Strengthening the regulation of telecouplings is critical as the Mexican
water context is worrying. About 73 per cent of Mexican lakes, ponds,
rivers, and other water sources have some contamination (Contraloría
Social, 2017). Likewise, uncontrolled pecan agriculture has led to the
depletion of fossil water and surface water sources, a loss of water eco-
system services, grassland systems, and increasing desertification (Lopez
Porras et al., 2018; Quintana, 2013).
Justice provision
To date, environmental justice has not been successful in protecting the Earth
and all human and non-human species that inhabit it, mainly because it has
been focused on achieving justice only between humans with regard to nature,
for instance, through the equal distribution of environmental harms (Parris et
al., 2014). Nevertheless, justice provision should encompass both justice
within the anthroposphere and justice between the anthroposphere and the
other components of the Earth system.
Integrating the Mexican water law into ESL 217
Table 12.2 Pecan production and mining activity in Mexico analysed through the five
major components of telecoupling
Telecoupling Pecan production Mining
components
Systems Sending Mexico Mexico
Receiving Europe and the US Australia, Canada,
Japan and the US
Spillover Unknown countries Canada and the US
Flows Materials/energy Pecans, money, agri- Minerals, machinery,
cultural technologies, money, and fuels in
and fuels in transportation
transportation
Information Prices, financial trans- Prices, financial
actions, trade agree- transactions, and
ments, and trade agreements
agricultural techniques
Agents Farmers and Local labour, govern-
governments ments, Indigenous
communities, other
water users and
mining companies
Causes Economic Growing pecan Increase global trade,
demand cheap labour, and low
taxes
Political Increase export market Pursue foreign
investment
Technological Agricultural and irri- Mining technologies
gation technologies
Environmental Differences in climate Mineral deposits
conditions for pecan
production
Cultural Increasing preferences Preference for jew-
for pecans ellery and electronic
products
Effects Environmental Water over- Water over-
exploitation, water exploitation, natural
pollution, and ende- resource depletion,
mic vegetation loss water pollution,
endemic vegetation
loss
Socio-economic/political Farmers profit, eco- Profit from local
nomic prosperity, labour and mining
social clashes, destruc- companies, economic
tion of hydraulic prosperity, human
infrastructure, breach rights violation, ille-
of law gal dispossession,
breach of law
218 Gabriel Lopez Porras
In Mexico, injustices start with water use and distribution. The main water
uses are hydroelectric (183,066 hm3) and agricultural (66,799 hm3) (CON-
AGUA, 2018). However, the water use for ecological conservation which aims
to protect the freshwater systems and ecological conditions of the area, only
has a volume of 9.46 hm3 (ibid.). In other words, of the 270,917 hm3 of water
concessions in Mexico, 67.57 per cent is for hydroelectric use (which is not
consumptive), 24.65 per cent is for agricultural use (consumptive), and 0.00
per cent is for ecological conservation. This shows that water does not have
an ecological value in its management (which is a direct consequence of the
purely fiscal value that the MWLF gives to water resources), undermining the
protection of water resources and its ecosystem services. To overcome this
injustice, Mexican water allocation must recognise nature’s ‘claim to a fair
share of the environmental resources which all life-forms need to survive and
to flourish’ (Baxter, 2005, p. 4).
Denying freshwater systems full access to the water ecosystem services
necessary to continue their ecological functioning is an injustice that has a
cascading effect on plant and animal species. In the northern part of the
Chihuahuan desert, where pecan agriculture has increased significantly,
grassland loss (given its conversion to croplands and desert shrub) has led to
the near-extinction of the prairie dog, a species on which around 200 species
of mammals, native and migratory birds, reptiles, and insects depend directly
or indirectly (PMARP, 2012). Of course, these injustices are not considered in
pecan telecouplings.
On the other hand, injustices within the anthroposphere can be better high-
lighted with mining case studies, where mining companies have used NAFTA’s
Chapter 11 to undermine water and environmental law enforcement, leading to
several human rights violations. In Mexico, from 2004 to 2016, more than 100
water-related conflicts were registered as a result of the illegal dispossession of
Indigenous water and lands and them being granted to the extractive industry
(Martínez Ruiz et al., 2017). Yet, this only considers conflicts where Indigenous
communities were involved and not conflicts like the Solorio family case. As an
illustration, a case reported by Stoltenborg and Boelens (2016) highlighted the
injustices against local communities, questioning the legitimacy in the design of
national and NAFTA’s regulations as they favour foreign investment. In this case
study, another Canadian mining company bypassed water and environmental
regulations, and started mining in spite of a restricted access decree to avoid
water overexploitation, affecting the whole municipality of Cerro de San Pedro
(Stoltenborg and Boelens, 2016). Another case took place in Sonora, where an
Indigenous community called the Yaquis clashed with the government and sev-
eral business groups because the Mexican government, by incurring, in contempt
of courts, illegal processes, and human rights violations, it stripped the Yaquis of
their sacred river to use it for other purposes (Moreno Vazquez, 2014).
From an anthropogenic (e.g., the Huicholes and Yaquis case) and an eco-
centric (e.g., the loss of water ecosystem services needed for ecological func-
tioning) viewpoint, the justice obtained from the MWLF is neither
Integrating the Mexican water law into ESL 219
distributive nor representational. It is not distributive since it does not pursue
the fair distribution of natural resources (e.g. water allocation for ecological
conservation) and it is not representational since the needs of human and
non-human species are not represented in resource allocation and justice
delivery processes (Hillman, 2006; Kortetmäki, 2016).
Conclusion
Anthropocentric, state-centric, reductionist and linear water and environ-
mental laws have failed to regulate the complex socio-ecological interplay,
undermining their potential to stop environmental degradation or achieve
sustainability. Given the increasing and worrisome environmental degradation
derived from human actions, it can be argued that there is an environmental
failure in the rule of law. Coupled with the lack of regulation of telecouplings,
domestic laws have not been able to face these Earth system dynamics. In
Mexico, the MWLF is far from meeting its functional aims, such as regulat-
ing the exploitation of water resources to achieve the preservation of its
quantity and quality and its integral sustainable development. In the light of
the current MWLF and its inability to face complexity and uncertainty, water
depletion, pollution, and human rights violation are commonplace in Mexico.
ESL has been proposed as an alternative in order to migrate from conven-
tional and state-centric environmental legislation to a legal framework that
embraces complexity, and non-linearity along with the cross-level and cross-
scale challenges when regulating coupled socio-ecological systems. Drawing
on a potential ESL conceptual framework, this chapter analyses the MWLF,
in terms of adaptiveness, system regulation and justice provision. In this
sense, it has been discussed that the institutional principles of (1) connectivity
and subsidiarity, (2) legally binding authority and accountability, (3) financial,
technical and administrative resources and (4) iteration and flexibility in
water policies, standards and programmes, are key to strengthening system
regulation and seeking justice provision for Earth system components. This
could be achieved through the establishment of watershed committees.
Accordingly, integrating the MWLF into the ESL perspective would poten-
tially have significant impacts on human well-being, the ecological function-
ing, and the protection of all living forms.
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13 A framework of Earth system justice in
the Earth system’s legal context
Maciej Nyka
Introduction
It seems quite natural to introduce a legal regulatory perspective into the
modern concepts of environmental research, focusing on systems, which
reflect the complexities of sustainability and global environmental change.
Despite the intensive conceptual and analytical research on Earth systems
governance (ESG) that has already been conducted for some years, law seems
not to have gained a similar amount of attention in research, or rather, until
recently at a later date (Kotzé and Kim, 2019). This is especially true in the
situation in which the concept of ESG has an inclusive character and
accommodates multiple scientific disciplines (Biermann, 2007). One of the
possible explanations for such a situation is the negative evaluation of existing
legal mechanisms in the context of their potential applicability to the new,
rising and challenging approach presented by ESG. Some authors observe
this phenomenon and call it the Anthropocene gap (Galaz, 2014). The
incompatibility of contemporary law to regulate modern environmental chal-
lenges is especially true in dealing with the problem of uncertainty with
respect to the functioning of ecosystems due to their complexity and func-
tional inter- and intraspecific dependencies (Shearing, 2015). The centuries of
the functioning of the sectoral approach stemming from Cartesian divisions
leave contemporary environmental law powerless in a confrontation with
modern global environmental challenges (Biermann et al., 2012).
The criticism of contemporary environmental law from the perspective of
Earth system governance touches upon the very core of the current interna-
tional legal system (see also Chapter 3 by Bleby and Chapter 8 by Warner in
this volume). It is especially surprising if taking into account international
law’s aspirations to be a ‘discipline of crisis’ (Charlesworth, 2002, p. 377). The
discipline of crisis in the opinion of many researchers fails to deal with the
modern regulatory challenges of the Anthropocene (Kotzé, 2019). Critical
studies focus on the fundamentals of international environmental law. One of
those areas is institutional structure (Widłak, 2019). The creation and devel-
opment of international economic law in the 1970s, 1980s and 1990s stopped
a half-step short of the creation of an institution which would be responsible
DOI: 10.4324/9781003198437-17
A framework of Earth system justice 227
for coordinating the implementation of international environmental law at the
global level. The United Nations Environmental Programme lacks power, and
in order to fulfil its duties, it needs to be deeply changed in the field, its
competences, agenda and working procedures (Biermann et al., 2012). The
need for institutional change goes along with support for structural changes
in the way environmental legislation is prepared and implemented. Current
international environmental law fails to prevent humans from reaching and
breaching environmental boundaries (Rockström et al., 2009). In order to get
common support for environmental legal initiatives, these proposals are too
pragmatic and conserve the current socioeconomic mechanisms, which fail in
providing humanity with ‘safe and just operating spaces’ (Biermann et al.,
2012, p. 1306).
The above-mentioned shortcoming comes from another huge problem of
international environmental law – its state-centrism. The traditional approach
equips states, and only states, with full legitimacy and authority in interna-
tional legal relations. International organisations, also commonly identified as
legal subjects, only reflect the competencies of states. This traditional
approach does not reflect contemporary divisions of power in international
relations (e.g., by not including multinational corporations) or even the object
which currently seems to play the most important role – protection of human
rights (including environmental rights). Non-state actors have limited options
not only for participation in the international environmental law-making
process, compliance verification procedures and dispute resolution processes
but also for observation and presentation of their points of view due to the
lack of transparency (Dupuy, 2005). Lack of proper recognition of interna-
tional companies, individuals and other non-state actors leaves the most
important drivers of the process of globalisation outside the scope of inter-
national legal regulation (Ietto-Gillies, 2003; Kleinert, 2004).
Since Max Weber’s ground-breaking sociological research (Weber, 1921),
law is now considered an unavoidable element of any socio-political system
and also forms the basis of ESG (Kotzé, 2012; 2014). The Anthropocene
changes the law’s perception and also the perceptions on law. The aim of this
change in the philosophy and practice of legal regulation is the creation of
mutually supportive and reinforcing relations between Earth system science
and ESG (United Nations General Assembly, 2018). Earth system law (ESL)
is a modern notion of law, closely related to ESG, which tries to embrace the
complexities of global environmental change within the language of legal
norms. The ESL concept calls for a deep reform of contemporary interna-
tional law and policy. ESL is a concept which is both descriptive and pre-
scriptive (Kotzé and Kim, 2019; Stephens, 2017). On one hand, it tries to
reflect the complexity of socioecological interactions of the Anthropocene; on
the other hand, it is more responsive to the challenges and risks which are the
consequence of those interactions.
The construction of a new ESL cannot be based purely on negation and
critique of an outdated legal regime. The core element of the legitimacy of
228 Maciej Nyka
ESL is the ability to better fulfil the core function of law, which is providing
tools for reaching just and equitable resolutions of conflicts and overlaps
appearing in the social sphere. At the conceptual level, systemic identification
of a new field of legal research and practice which aims at supporting the
process of ESG requires articulation of the axiological basis of this system.
For lawyers as well as representatives of other fields of research, most lacking
seems to be the concept of justice. Environmental justice is not only con-
nected with environmental protection in a narrow sense but also with treating
the environment on a par with social development and historical justice
(Ciechanowicz-McLean and Nyka, 2016). The concept of environmental jus-
tice is connected with social activism, participatory concepts and identifica-
tion of the environment as a common good (Bosselmann and Grinlinton,
2002). ESL builds on the concept of environmental justice, while adapting it
to its own characteristics. While for many, the environmental law concept
remains a concept used primarily at the micro scale, ESL tries to create a safe
and just operating space on the macro global scale (Dawson et al., 2018).
The universalism of the idea of justice is manifested, inter alia, by the fact
that it is referred to by both jurists who seek the aim of regulation and non-
legal researchers, including economists and ecologists, according to the maxim:
ius esta ars boni et aequi. It is usually presented as a kind of template to which
the current situation is compared, mainly in order to determine how much the
actual state of affairs differs from the ideal of justice. This is followed by the
formulation of a postulate of systemic or individual changes (Suttle, 2018). In
law, the idea of justice spreads in all legal disciplines, not excluding interna-
tional law. In research on international law, as well as in the making of it, the
development of the cosmopolitan justice concept can be observed today. Its
foundations appeared as early as in Roman ius gentium and it was (later)
developed by Hugo Grotius and his followers (cf. Rawls, 2001).
Man has the fundamental right to freedom, equality and adequate con-
ditions of life, in an environment of a quality that permits a life of dignity
and well-being, and he bears a solemn responsibility to protect and
improve the environment for present and future generations. In this
respect, policies promoting or perpetuating apartheid, racial segregation,
discrimination, colonial and other forms of oppression and foreign dom-
ination stand condemned and must be eliminated.
(United Nations 1972)
Thus, Principle 1 provides an important basis for claims in the context of the
implementation of the idea of intragenerational justice, both in terms of
environmental protection as well as social and economic issues.
Social, economic and racial problems often overlap with growing environ-
mental risks. The environmental justice movement is today one of many
ecology movements. However, it has distinctive features, such as combining
economic issues with environmental discrimination, aiming at the rights of
entire communities rather than individuals and finally, referring to environ-
mental racism and demands relating to historical justice. It focuses on the
efforts to combat discrimination in access to environmental resources based
on social class, race, ethnicity or nationality, living in rural/urban areas, age
and gender.
International efforts to ensure intragenerational justice are to large extent
aimed at mitigating the dispute between the rich North and the poor South.
This dispute has been going on for several decades and is one of the most
important problems in the development of international environmental law.
The first grounds of conflict are the historical considerations, especially
A framework of Earth system justice 231
colonial times and slavery, which provide a specific moral basis for claims by
the countries of the South. Another area of conflict are the benefits of making
use of natural resources located in the poor countries of the South. Those
countries claim that they have not been granted a fair share in the economic
benefits resulting from their exploitation. Moreover, there is evidence of
overexploitation of natural resources which further reduces the quality of life
of the Southern inhabitants (Sands et al., 2013). The third area of dispute is
shaping of the global economic order which, according to the countries of the
South, cannot resolve the global economic, societal and social inequalities
(Pogge, 2001) and sometimes even perpetuates them.
The implementation of intragenerational justice entails the need for highly
developed countries to undertake aid measures in three directions. The first
course of action is the participation in environmental protection costs borne
by undeveloped countries in the common interest. Many international envir-
onmental agreements provide for the mechanisms of financial support related
to the implementation of environmental protection tasks by the poorest
countries. The second course of action includes greater access for the poorest
countries to benefits resulting from the exploitation of natural resources. The
third course of action includes financial transfers aimed at facilitating the
adaptation of underdeveloped countries to the deteriorating quality of the
natural environment (Brown Weiss, 1989), which is not necessarily their fault.
The basic reasons highly developed countries provide assistance to under-
developed countries is that, without state support, the countries would be
unable to implement the concept of sustainable development (Des Jardins,
1997). In particular, the failure to ensure an adequate share in ecosystem
benefits resulting from the location and exploitation of natural resources in
their territories poses a serious threat to the environment and, consequently,
to intra- and intergenerational justice (Okrent, 1999). The political con-
sequence of the absence of adequate resources is the potential exclusion of
that group of countries from the international initiatives aimed at environ-
mental protection and, consequently, an increase in environmental pressure
on the development of highly developed countries. Without external assis-
tance, the countries concerned will not be able to fulfil their obligations in the
area of intragenerational justice. According to Brown Weiss (1989), the jus-
tice-based justification of aid measures is that undeveloped countries, and the
societies living in those countries, experience an absence of a just share in the
resources left by previous generations. Therefore, such intragenerational
injustice is contrary to the requirements of sustainable development.
Developing countries raise the issue of uneven distribution of environ-
mental costs related to exporting pollution to developing countries which do
not share the benefits of those pollution-generating activities (Harper and
Rajan, 2004; Shelton, 2007). Accusations of plundering natural resources, first
by the colonial powers and currently by international corporations, are raised
by underdeveloped and developing countries (Harper and Rajan, 2004). The
effects of global threats, such as climate change, are particularly severe for
232 Maciej Nyka
undeveloped countries. Poor countries which do not have sufficiently devel-
oped economies or industries are only marginally responsible for climate
change but often bear the majority of the negative consequences of such
changes. This is due to the poor ability of those countries’ populations to
adapt to changing climatic conditions (Sands et al., 2013).
In the environmental justice concept the intragenerational perspective on
redistribution is supplemented by the intergenerational one. ESL also has to
include the perspective of future generations within its regulatory framework.
The references to intragenerational justice are already reflected in international
legislation. They can be seen in a number of international environmental law
instruments which contain various norms that establish instruments of economic
cooperation. They can be found in the United Nations Framework Convention
on Climate Change (United Nations, 1992c) as well as in the Paris Agreement
(United Nations, 2015) and in the Kyoto Protocol (United Nations, 1997). They
are reflected in the international system of the protection of the seabed, estab-
lished by the United Nations Convention on the Law of the Sea (United
Nations, 1982). They are present in a variety of regional and global conventions
which seem to identify the link between the economic conditions in which
societies live and their determination to deal with environmental problems.
What is interesting is that this relation can also be identified in interna-
tional economic law instruments, which often refer to sustainability and
environmental protection when creating the framework of international
trade. At the global level, the agreement establishing the World Trade
Organization (World Trade Organization, 1994) refers to sustainable
development in its preamble. Numerous bilateral and plurilateral trade
agreements introduce environmental or sustainability clauses.
Arguments relating to intragenerational justice can also be identified in the
case law of international courts. In that context, it is noteworthy to refer to
Tunisia v. Libya – the case decided by the International Court of Justice (ICJ).
The Court of Justice found the arguments based on access to natural resources
and the demographic pressure to use them, in addition to other arguments,
relevant for making a decision (International Court of Justice, 1982; McGinley,
1985). Similar factors were taken into account in El Salvador v. Honduras
(International Court of Justice, 1992; Philipp, 2008). In these cases, the Court
ruled on the basis of the principles of equity, even though the parties had not
made use of Article 38 (2) of the ICJ Statute (1945) which creates the only
direct possibility of doing so. It is clear that the court wishes to ensure the
broadest possible access to natural resources in the intragenerational context.
Thus, the arguments referring to intragenerational justice become not only a
smart theoretical idea but also the basis for making decisions in complicated
cross-border disputes.
One of the more important dilemmas related to the intergenerational
aspects of environmental justice is the answer to the question of whether the
present generation can have obligations towards future generations, that is,
towards an impersonal and potential entity. The question also needs to arise
A framework of Earth system justice 233
as to whether those obligations correspond to rights on the part of future
generations. The answer to the first question seems to be quite easy, especially
taking into account environmental protection norms. In the area of interna-
tional environmental law, the effects of both lawful and unlawful actions are
often distant in time. Therefore, it is a common practice to impose certain
restrictions, obligations towards future generations, on the contemporary
generation. The very idea of sustainable development, of which an important
element is the principle of intergenerational solidarity, is based on that con-
cept. The presence of a legal interest in future generations in inheriting the
environment in a condition that leaves to them, as Brown Weiss (1989) puts it,
the opportunity to choose options determines the possibility of imposing an
obligation on current generations in that respect (De-Shalit, 1995). It can also
be seen that there is a significant difference between the existence of future
generations and the existence of the objects devoid of autotelic value – a
category that determines the possibility of the existence of a legal interest
(Raz, 1986).
A wide range of opinions can be found in legal writings, from views that
completely reject any moral or legal links between the present generation and
future ones (Baier, 1981) through to theories that admit that there can be such
rights but indicate numerous conceptual or practical problems (Visser t’ Hooft,
2010) to innovative views which confirm the existence of the rights of future
generations (Brown Weiss, 1990). Kelsen’s pure theory of law provides that there
can be duties, even though there are no rights reflecting them. The examples of
such duties, including environmental protection ones, refer to duties such as the
duty to protect animals or plants (Kelsen, 1967). Similarly, absolute duties exist
independently of corresponding rights (Austin, 1832). It is, therefore, clear that
establishing that there is a right holder is not a sine qua non condition for the
existence of a duty. On the other hand, this approach weakens to some degree
the position of future generations in taking redistributive decisions in the context
of intergenerational justice (Brown Weiss, 1990).
Recognising that there are duties imposed on the present generation with-
out unambiguously confirming the rights of future generations is undoubtedly
a less controversial solution. On the other hand, it is worth considering whe-
ther the rights of future generations are the same category of subjective rights
to which Austin (1832) and Kelsen (1967) refer. Intergenerational rights, or
the rights of humankind as a whole, are slightly different from the subjective
rights of individuals. They are called planetary rights or rights of humanity as
a whole (Brown Weiss, 1990). Thus, they refer to the collective nature of
solidarity in human rights.
Intragenerational and intergenerational aspects of distributive justice in the
environmental field create challenges for any newly formed system of global
environmental governance. Accepting the existence of rights of future persons
to the environment is especially difficult considering drawbacks in the field of
protection of environmental rights of contemporary people. However, it seems
that identification of legal rights of future generations can prove to be an
234 Maciej Nyka
effective standard of protection of the rights of contemporary people. In other
words, that which is kept in (environmental) trust for future generations is
available today – if it is used sustainably.
Conclusion
The analysis presented in this chapter shows the role of justice in the process
of the creation and functioning of ESL. Research proves that the concept of
justice (environmental justice) is one of the cornerstones of any new concepts
connected with reforming the global legal system of environmental manage-
ment and regulation. Change with an evolutionary character is already hap-
pening. ESL is a system in statu nascendi and its implementation might have,
and in some aspects should have, both an evolutionary and revolutionary
character; in many aspects, what has been shown is that revolutionary chan-
ges are required that will mean the replacement of some of the critical ele-
ments of the international legal system.
The concept of environmental justice is multidimensional. Various problems
connected with the implementation of the idea of justice arise in its distributive
dimension. Legal instruments prepared to ensure redistribution of burdens and
profits within societies and among states exist in international and national
legal orders. However, the existing redistribution schemes have many drawbacks
and often cause disappointment and frustration with respect to efforts aimed at
the protection of the environment. This causes problems with implementation
and enforcement of regulatory measures and lack of engagement in interna-
tional cooperation in the field of environmental protection.
Adding an intergenerational dimension to the problem of distribution of
environmental goods and services additionally complicates the decision-making
processes. However, the obligation of intergenerational equity stems directly
from the concept of sustainable development and thus has to be included in
some way. What is even more important is that intergenerational equity seems to
support standards of protection for the environment for the contemporary gen-
eration. Establishing ESL will require proper guarantees of the universal pro-
tection of rights not only from the perspective of the contemporary generation
but also of the generations to come. Thus, the concept of intergenerational
environmental stewardship seems to be an important element of ESL.
Closely connected with the above-mentioned challenges is the problem of
procedural justice. Just distribution of burdens and profits can be ensured
only by procedural guarantees in the field of environmental law. Substantive
and procedural environmental rights create a self-supporting system of envir-
onmental justice. Participatory guarantees create public involvement in envir-
onmental protection, raise support and create the will to undertake challenges
at the lowest level of an individual person and their individual everyday
choices. Earth system justice cannot continue to waste the energy of inclusive
civil society of those understanding their individual interests in common
actions in the field of environmental protection.
242 Maciej Nyka
What is interesting is that the regional systems of protection of environ-
mental rights are either focused more on procedures or on substantive aspects
of those rights. In both cases, they seem to be underdeveloped and deprived
of a huge part of their efficiency by the denial of the mutual support of dis-
tributive and procedural elements of environmental justice. The importance of
the procedural dimension of environmental justice is even greater if it is
understood that modern institutions of substantial environmental law, such as
environmental impact assessment, adaptive environmental management and
an ecosystem approach, are de facto dependent on fair and inclusive partici-
patory procedures.
The importance of procedural justice is strengthened by the fact that in
many societies, huge disappointment appears when considering the effi-
ciency of the environmental management performed by central govern-
ments or high-level official authorities. Procedural justice allows the
immunisation of the environmental protection goals against unstable poli-
tical preferences and non-ambitious environmental goals presented by the
political class.
The evaluation of contemporary procedural arrangements clearly shows
that in many respects they fail to go beyond a pretentiousness which gives
the appearance of democratisation of decisions being taken elsewhere.
Contemporary procedures also to a large extent exclude weaker share-
holders, such as Indigenous groups, minorities, the elderly and others, by
unnecessary formalisation of the participatory process or simply the lack
of recognition of the status of certain groups of interests. In this respect,
one can observe strong links between the procedural and recognitive
aspects of the Earth system justice.
As has been noted, the problem of lack of recognition can be observed
in both the distributive and procedural aspects of environmental justice.
The Earth system justice concept tries to overcome this shortcoming by
opposing all forms of environmental racism. Recognition and thus
empowerment of Indigenous people and their knowledge often seem to
provide answers in areas in which solutions cannot be given by con-
temporary science. Recognition is also a condition of proper implementa-
tion of procedural and distributive justice. Lack of recognition excludes
weaker actors from the distributive schemes, deprives them of articulating
their needs and leaves them without procedural means of reacting to such
injustices.
Policies are being formulated and positive examples can be found of
initiatives that better recognise the role of civil society representatives,
businesses, individuals, future generations, animals and other stakeholders
in the perspective of Earth system justice. What is interesting is that those
examples appear in Asia, Africa and South America and outside Europe
and North America, which claim to represent the highest levels of devel-
opment of civilisation as well as being considered the cradle of inclusive
democracy.
A framework of Earth system justice 243
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se/75/judgments
14 Common interest, concern or heritage?
The commons as a structural support for an
Earth system law
Paulo Magalhães
DOI: 10.4324/9781003198437-18
The commons as structural support for ESL 249
1992b). Almost 30 years later, and well after the adverse effects of climate
change have been conceptually understood as a common concern of humankind,
there is still no consensus on what that means from a legal standpoint. Even
though this language remains within the Paris Agreement, common concern
continues to be a vague political formula, that does not legally recognise the
existence of the common good itself, making it impossible to legally protect the
rights and duties that necessarily derive from its use (Tolba, 1991).
The reason why the nature and scope of concepts like global commons,
common interests, common heritage or common concern of humankind,
remain somewhat unclear (Voigt, 2014) is because the dividing line between
their means remains vague (Tams, 2011). This lack of definition arises from
the fact that the concept continues to challenge the ideological pillars of the
modern international order, which explains why it has been so difficult to find
an appropriate legal environment for it to be grounded and developed in
international law.
However, although all these concepts are related and share the same word
common, they are distinct from each other. Common concerns (CC) cross the
borders of unitary states, and necessitate collective action (Shelton, 2009b).
This is the starting point for the fundamental difference between heritage and
concern: a CC is related to a specific issue. In that sense the concept should
enjoy normative superiority, since it confronts notions of fundamental value
(Biermann, 1996). While the semantic distinction suggests a difference in
normative meaning, taking into account the issues at stake (Shelton, 2009a),
the idea of a concern implies urgency, potentially unstoppable environmental
impacts and a whole suite of societal impacts (Voigt, 2014). On the other
hand, the term heritage is not related to an issue/problem/cause but rather
with a resource. Therefore, it is observed that, in the Maltese proposal, the
object of heritage is a stable climate, while concern targets the adverse effects
of climate change. Concern does not have proprietary meaning, but is related
rather to those issues and problems, and requiring a response (Scholtz, 2014).
In other words, the heritage is focused on the exploitation or management of
one type of resource that represents a shared inheritance, a common patri-
mony that belongs to all humankind, while concern is centred on the problem
itself, without properly defining its belonging, and consequently the possibi-
lity of establishing a legal regime for its use as a common resource. The
meaning behind the common heritage of humankind (CHH) implies a geo-
graphic area or resource, while the common concern of humankind (CCH)
implies a specific issue (Bowling et al., 2016). An analogy of the legal rela-
tionship between heritage to concern might be made with the grammatical
relationship of subjects to verbs.
The territorially and tangibility of the resources to which the common
heritage concept has been applied have been one of its main characteristics up
to now. The idea has been used as a legal regime for resources of areas that
are not legally capable of national appropriation. As a result, specific regimes
have been developed for the deep oceanic seafloor and its subsoils, and
250 Paulo Magalhães
Antarctica, or the Moon (as Cirkovic explores in Chapter 11 in this volume)
(Kiss and Shelton, 2007). However, although the reference to climate as a
resource is frequently used in some legal literature (United Nations, 2015b),
the question is that a stable climate is a certain pattern of functioning of the
Earth system corresponding to a well-defined operating mode and is, by its
very nature, intangible from the legal point of view. If a stable climate is a
natural phenomenon that exists de facto in the natural world, it does not
necessarily have to be reduced to an issue of common interest in international
law, equal to peace or human rights. The scientific knowledge already exists
to equip international law with the necessary tools to materialise this intan-
gible natural system, which spans across and beyond the national territories
of states. The approach implicit in the UN Resolution 43/53 on climate
change (United Nations General Assembly, 1988) indicates a path based on
the conviction that the CC concept could liberate states from the con-
troversial treatment of common heritage objects, which have often ended up
historically in disputes about tangible resources. However, what has resulted
instead are extended negotiations around such topics as voluntary carbon
reductions, as exemplified in the UNFCCC by the Conference of the Parties
(COP) processes, which have not successfully arrested the increasing levels of
carbon dioxide emissions in the atmosphere (Boudreau, 2017).
The capacity of law to explain and represent one complex and highly inter-
connected planet by accurately portraying natural facts and building a fra-
mework that enables the successful management/restoration and maintenance
of a global common with no borders, in a way that overlaps with territorial
sovereignty, will determine the extent of that legitimacy (Magalhães et al.,
2018). Law and the science which underpins it must change to stay relevant in
the Anthropocene, particularly if law is to continue to be the main regulatory
instrument used to create and safeguard social order, and maintain predict-
ability, and stability as well as legitimacy, while at the same time pursuing
justice (Kotzé and Kim, 2019). The law can only effectively meet this chal-
lenge by including modern scientific concepts and thereby maintaining an
essential role of creating a better world, instead of being part of its downfall
(Capra and Mattei, 2015). Currently, with a clearer perception of all these
interconnections and global functioning of the Earth system as a single
whole, it is not appropriate, for example, to address the marine environment
in an isolated way, but rather to integrate it into the bio-geophysical cycles of
a single system on the global scale. With the development of knowledge about
the functioning of the Earth system and by defining the well-functioning state
of the Earth system and its qualitative and quantitative boundaries, there are
now the scientific instruments to better identify a specific legal object at a
global scale. From this evolution, a new principle of international law is also
emerging – the Principle of the Integrity and Unity of the Earth System
(Magalhães et al., 2019).
Arvid Pardo did not have this knowledge in the 1960s – the possibility of
distinguishing the marine environment as a whole from the territorial area of
The commons as structural support for ESL 255
the oceans – but today it is indeed possible to distinguish the environment as
a whole from the territory of the planet itself and define it. The safe operating
space for humanity, as a qualitative and non-territorial space, may thus
overcome the technical limitations of the initial territorial/tangible resources
object of the common heritage approach, and provide the answer to a grow-
ing range of possible non-spatial applications, thus accomplishing the objec-
tives that were in the embryo of this concept. If the common heritage concept
includes the idea of interconnectedness – that the global commons cannot
only be confined outside national borders, and thus cannot be managed
through a governance model based on siloed territorial thinking – and if there
are now the scientific tools to better represent this natural reality in interna-
tional law, then humanity is at the historical moment to bridge the gap.
Nature is not only what can be touched and seen but its most valuable
dimension is its intangible dimension. Fortunately, human societies have a
long history of recognising intangible assets and granting them legal protec-
tion. Examples include the Intangible Cultural Heritage Convention
(UNESCO, 2003), the goodwill value of companies, intellectual property
rights, and so forth. These solutions, which have resulted in new legal recog-
nition of intangible assets, proved to be crucial for the construction and
functioning of today’s society. The development of a Lex Anthropocenae
(Kotzé and French, 2018) is required to confront head-on the deep economic-
socio-ecological crisis of the Anthropocene, and will necessarily have to
258 Paulo Magalhães
address and harmonise the interdependence resulting from the shared use of
the same planetary system, as well as the intangible conditions that support
life on Earth. Acknowledging the existing legal regime in the common heri-
tage of humankind (in so far as it is in place), such assets include the seabed
and its minerals, the living resources of Antarctica, existing and restricted (i.e.
privileged) near-Earth orbits, and the celestial bodies of space including the
Moon. These all represent material examples of specific interests in a broader
sphere, and which crystallises the common good around these exact points
(Kiss, 1982).
The possibility of establishing the initial project of common heritage and
defining an intangible heritage without borders at the functional level of the
Earth system depends on humanity’s capability to clearly and precisely define
it. Humanity now faces the moment to take a major step forward in the
development of a new normative concept of the Earth, where the intangible
commons will have a critical role.
Addressing the diversity and complexity of the Earth system as a legal, single
integrated system
By legally addressing the Earth system as single whole – through the recog-
nition of the safe operating space as an intangible common heritage – it is
possible to overcome the problem of fragmentation in addressing specific
issues or elements. This is a critical issue, because if a single process is
addressed in an isolated way (as is still being done with CO2), all the other
critical processes (planetary boundaries) that interact one with another are
ignored, as well as all the feedbacks and domino effects that will happen
throughout the system. If one or some of the planetary boundaries are
transgressed, the risk that the Earth system is driven out of the Holocene
stability rapidly increases.
262 Paulo Magalhães
Benefit sharing vis-à-vis damage sharing
The evolution of the Paris Agreement should lead to the construction of a
regenerative economy. Environmental benefits and burdens are shared by all
persons. The production of benefits in the Earth system cannot be equated with
economic loss. With limitations, nature-based solutions (the work of the bio-
sphere) and negative emissions need to become visible in the economy. A con-
gruent system of the rules of appropriation (negative impacts) and of provision
(positive impacts) is a structural condition for the successful management of
the commons (Ostrom, 1990). An equitable system of benefit sharing is already
one of the elements of the common heritage of humankind that can be devel-
oped into a true system of accounting relatively to this intangible heritage: the
legal framework for the emergence of a regenerative economy.
Conclusion
Human societies are an integral part of the Earth system, not an outside
driver perturbing the otherwise natural order (Young and Steffen, 2009).
Humanity’s future depends on its capacity to self-organise its relations around
the use of the Earth system to which it belongs and on which it depends. If
law is to remain relevant in the Anthropocene (Kotzé and Kim, 2019), it must
The commons as structural support for ESL 263
reinvent itself. It cannot avoid addressing the concept of the commons as
natural intangibles, since it is those intangibles which form the basis of the
bio-geophysical conditions that support life.
The common heritage is particularly daring, perhaps even unrealistic. How-
ever, this unrealism could be the most realistic way of looking at the future of a
humanity where non-renewable resources are given up once and for all and
where there is an imperative to manage them together for the benefit of present
and future generations (Kiss, 1982). The pattern of stable and predictable
dynamics of the Earth system corresponds to a stable climate and a resilient,
well-functioning biosphere – humanity’s most valuable asset. This truly common
good without borders can be renewable and maintained, if the work of the bio-
sphere is made visible in society, and in the economy. To conclude, as others have
observed before (Voigt, 2014) international jurisprudence has one single, real
interest: the survival of humankind, which is grounded on equity, sustainable
development, and the rule of law.
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Part V
Plotting the course of Earth
system law
This Part addresses the three-fold set of thematic questions raised in Table 1.1
from the perspectives covered in the previous chapters, and comments on the
gaps, tensions and silences raised, providing pointers to the future of ESL.
DOI: 10.4324/9781003198437-19
15 Conclusion
Plotting the course of Earth system law on
the precipice of the Anthropocene
Margot Hurlbert, Andrea C. Simonelli and
Timothy Cadman
Introduction
Law, often regarded as a durable social structure, has historically provided
stability, certainty, and predictability in the ordering of social relations (pre-
dominantly between humans). Historically, the law has been preoccupied with
human and Earth relations, those of property and the exclusion of other
humans from Earth’s precious resources. However, in past decades, the rela-
tionship between humans and the Earth has received focus and there has been
increasing recognition of the standing of the Earth, of Mother Earth, in her
own right. Law, albeit one social system, is an important institution of dur-
able quality increasingly important in solving pressing problems in the
Anthropocene and in relation to governance of the Earth system. Rights now
include inherent rights of the environment (flora and fauna; biotic and abiotic
systems) and recognition of the multiple and overlapping relations of the
Earth system. A new era of law has recently emerged, challenging the closed
autopoietic system of law and marking a new era. The Earth is standing on
the praecipe of the Anthropocene and imaging what, who, and the how of
ESL in the Anthropocene.
Law and the Earth system, situated as they are within the planetary realm,
are the focal points of this book (even if some authors also, justifiably, take to
the heavens). Departing from the premise that humans are separate from or in
control of nature, humans are a part of or one species among many in the
conception of this book. However, humans are unique in their ability to
intentionally shape the Earth system. In the age of the Anthropocene, how
this dynamic will shape, or how humans will be shaped in the era of the
Anthropocene, is of key concern. Interdisciplinary and transdisciplinary in
nature, this book interrogates law with legal scholarship, but also within the
disciplines of political science, anthropology, economics, ethics, sociology and
psychology. Involving other stakeholders, decision makers, and actors in the
study, analysis, and reflection about law’s place in addressing the issues of the
Anthropocene, ESL of necessity becomes transdisciplinary.
The chapters of this book reflect the early state of an exciting and emerging
dynamic field that is benefiting from bottom-up diverse and individualistic
DOI: 10.4324/9781003198437-20
270 M. Hurlbert, A.C. Simonelli and T. Cadman
development. In Part I, a range of analytic frameworks is offered for advan-
cing ESL. The book is lex ferenda, oriented to law in the future, not law as it
is now or as it has been (based on jurisprudential law), but law standing on
the precipice of the Anthropocene. This book’s conception of ESL is as it can
and should be in the future. This is a call for planetary-inspired ESL. In this
book, ESL emerges, challenging the closed auto-poetic system of law, mark-
ing a new era in law and society scholarship. This book has introduced a
complex and non-linear conception of law. Although answers are provided,
many questions still remain. The geography of ESL is both local (Mexico and
Uganda) but also global, and extra-terrestrial. It has sub-system cycles
(atmosphere, lithosphere, cryosphere) as well as social-ecological systems.
In this concluding chapter, the major themes are reviewed, uniting ideas
arising from the chapters of the book, and we imagine their expansion.
Building on each of the three parts of the book, the analytical, normative and
transformative dimensions of ESL, this chapter offers a pathway forward for
ESL, its practice, advancement and scholarship.
Time
Also future
generations
Reponsibility
‘Only the
present
Precaution Least harm
generation’
Procedural justice Legitimacy
High-End
Independence Climate Integrity
Change
Robust World
Standing
Knowledge
Distributive justice Sufficiency
Recipients of moral
consideration
Figure 15.1 Earth system law’s expanded cognitive and moral framework
Source: Based on Tàbara (1999).
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Index