Charting Environmental Law Futures in the Anthropocene 9811390649, 9789811390647

This book explores a range of plausible futures for environmental law in the new era of the Earth’s history: the Anthrop

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Charting Environmental Law Futures in the Anthropocene
 9811390649,  9789811390647

Table of contents :
Foreword......Page 5
Contents......Page 7
1 Securing Equitable and Sustainable Futures in the Anthropocene—What Role and Challenges for Environmental Law?......Page 10
1.1 The Anthropocene......Page 12
1.1.1 A Safe Operating Space for Humanity......Page 14
1.2 Sustainable and Equitable Futures in the Anthropocene......Page 15
1.2.1 Global Inequities Challenge Planetary Sustainability......Page 16
1.2.2 Towards Equitable Sustainability in the Anthropocene......Page 19
1.2.3 Plausible and Desirable Environmental Law Futures in a Good Anthropocene......Page 20
1.3.1 Re-Defining Human-Environment Relationships......Page 21
1.3.2 Planetary Order and International Collaboration......Page 23
1.3.3 Implementing Transformative Law and Governance for Sustainable and Equitable Futures......Page 24
1.4 Conclusion......Page 25
References......Page 26
Re-defining Human-Environment Relationships......Page 28
2 Rights of Nature in the Anthropocene: Towards the Democratization of Environmental Law?......Page 29
2.1.1 The Rights of Nature in the International Law Arena......Page 31
2.1.2 Latin America—Leading the Way for Nature’s Rights......Page 32
2.1.3 Key Characteristics of Nature’s Rights in Latin America......Page 35
2.1.4 Implementing the Rights of Nature in the Anthropocene......Page 36
2.2 An Emergent Agenda for Socio-Legal Environmental Law Research in the Anthropocene......Page 37
References......Page 38
3 Moving Towards “Ecological Civilization” in the Anthropocene: The Future of Environmental Law in China......Page 40
3.1 Anthropocene: A Concept for Self-reflection......Page 41
3.2 The Proposition of “Ecological Civilization” in the Anthropocene......Page 42
3.3 Re-conceptualizing the Environmental Law in China in Moving Towards “Ecological Civilization”......Page 43
3.3.1 The Formation of Rules in a Process of “Glocalization”......Page 44
3.3.2 The Guarantee of Implementation via Administrative/Party Accountability Mechanism......Page 45
3.3.3 The Systematization of Legal Standing for Environmental Litigation......Page 47
3.4 Concluding Remarks......Page 48
References......Page 49
4.1 Introduction......Page 51
4.2 Sustainable Development in the Anthropocene......Page 52
4.3 International Environmental Law Needs a New Paradigm: Challenges of IEL......Page 55
4.3.1 The Emergence of Sustainable Development Law......Page 57
4.3.2 Advancing Sustainable Development Law in the Anthropocene......Page 58
4.4 The Way Forward: A Global Pact for the Environment?......Page 60
References......Page 62
5.1 Introduction......Page 65
5.2.1 Defining the (Historical) Reference System......Page 66
5.2.2 Towards ‘Novel’ Ecosystems?......Page 68
5.3.1 Defining the Legal Duty to Restore......Page 69
5.3.3 Implementation Challenges......Page 71
5.4.1 The Need for Principles and Standards......Page 72
5.4.2 The Need for New Laws?......Page 73
References......Page 74
6.1 Introduction: The Challenge of the Anthropocene......Page 77
6.2 Japan’s National Parks as a Typical “Beyond the Boundary” Model......Page 79
6.3 Key Factors for Successful Management of the “Beyond the Boundary” Model......Page 80
6.4 UNESCO’s Biosphere Reserve: Incorporating “People” in Protected Area......Page 83
6.5 Conclusion: The Role of Environmental Law in the Anthropocene......Page 84
References......Page 85
Planetary Order and International Collaboration......Page 86
7.1 Introduction: The Ocean-Climate Nexus in the Anthropocene......Page 87
7.2 The Ocean-Climate Nexus in International Law......Page 90
7.3 Example 1: International Shipping Emissions......Page 92
7.4 Example 2: Blue Carbon......Page 93
7.5 Example 3: Protecting the High Seas......Page 95
7.6 Conclusion......Page 97
References......Page 98
8 Consequences of the Recognition of Forest Protection as a Common Concern of Humankind for the Anthropocene......Page 99
8.1 Introduction......Page 100
8.2 The Global Commons and International Law......Page 101
8.2.1 Global Commons of Common Concern Character in Multilateral Environmental Agreements......Page 102
8.2.2 Applicability of the Three Common Concern Key Elements to Forests......Page 104
8.3 Forests as a Common Concern in the Anthropocene......Page 105
8.4 Advancing Common Concern in the Anthropocene......Page 106
8.5 Conclusion......Page 107
References......Page 108
9.1 The Importance of Transboundary Freshwater Resources in the Anthropocene......Page 110
9.2 The Rise of “Water Wars” Rhetoric During the Anthropocene Despite a Record of Hydro-diplomacy......Page 112
9.3 Global Conventions in Force Offering Legal Foundations for Cooperation and Dispute Settlement......Page 115
9.4 Watercourses Convention......Page 116
9.5 Water Convention......Page 117
9.6 Conclusion......Page 118
References......Page 119
10.1 Introduction......Page 123
10.2 International Law in Antarctica......Page 124
10.3.1 Antarctic Futures......Page 125
10.3.2 China’s Expansion in Antarctica......Page 126
10.4 China’s Antarctic Law and Policy......Page 127
10.5 Conclusion......Page 128
References......Page 129
11.1 Introduction......Page 131
11.2 The Importance of an International Environmental Court for Global Governance in the Anthropocene......Page 132
11.3 An International Environmental Court as the Appropriate Mechanism to Achieve the Sustainable Development Goals......Page 134
11.4 An International Environmental Court as a Challenge to Existing System of Environmental Dispute Resolution......Page 135
11.5 Conclusion......Page 138
References......Page 139
12.1 Introduction......Page 141
12.2 The Importance of Transparency for Effective Global Environmental Governance......Page 142
12.3 Challenges to Achieving a Transparent and Accountable Global Environmental Governance System......Page 144
12.4 A New Transformation: Transparency in the Anthropocene......Page 146
12.5 Embracing Transparency: Measuring, Reporting and Monitoring Environmental Trends......Page 147
12.6 Conclusion......Page 148
References......Page 149
Implementing Transformative Law and Governance for Sustainable and Equitable Futures......Page 151
13 Indigenous Rights and Universal Periodic Review: A Confluence of Human Rights and Environmental Issues......Page 152
References......Page 157
14 Constitutionally Shackled: The Story of Environmental Jurisprudence in India......Page 159
14.2 Challenges to Obtaining Redress for Environmental Harm......Page 160
14.3 The Oleum Gas Leak Case......Page 163
14.4 The Vellore Citizen’s Welfare Forum Case......Page 164
14.5 The Godavarman Case......Page 166
14.6 Conclusion......Page 167
References......Page 168
15.1 The Anthropocene and Environmental Rule of Law......Page 170
15.2 Liability for Environmental Harm......Page 171
15.3 Deterring Future Environmental Harm......Page 172
15.4 Remedies Following Environmental Harm......Page 173
15.5 The Challenges to Operationalising Liability for Environmental Harm......Page 174
15.6 Liability in the Future Environmental Law......Page 176
References......Page 177
16.1 Introduction......Page 180
16.2 The Problem with Environmental Law Today......Page 182
16.3 The Solution......Page 184
16.4 Codetta......Page 185
References......Page 188
17.1 Introduction......Page 190
17.2 Rise of the Urban Municipal Solid Waste......Page 191
17.3 Procedural and Regulatory Laws for Municipal Solid Waste Management......Page 193
17.4 Non-implementation of the Municipal Solid Waste Rules and Its Subsequent Amendments......Page 194
17.5 Paper Tigers, Inefficient Monitors and a Self-centered Society......Page 197
17.6 Accurate Data Collection, Stricter Enforcement of Laws and Higher Public Participation......Page 199
References......Page 200
18 Can South African Planning Law and Policy Promote Urban Sustainability in the Anthropocene?......Page 201
18.1 Introduction......Page 202
18.2 The Notion of Urban Sustainability in the Anthropocene......Page 203
18.3.1 Planning for Urban Sustainability......Page 204
18.4 Compatibility of Planning Law for Promoting Sustainable Cities: A South African Perspective......Page 205
18.5 Constitution of the Republic of South Africa (1996)......Page 206
18.6 Local Government: Municipal Systems Act 32 of 2000......Page 207
18.7 Spatial Planning and Land Use Management Act 16 of 2013......Page 208
18.7.1 The Role of South African Planning Law in the Pursuit of Urban Sustainability: A Matter of Reasonable Compatibility?......Page 209
18.8 Concluding Remarks and Future Directions for Planning Law for Promoting Sustainable Cities......Page 212
References......Page 213
Research Agenda for Sustainable and Equitable Environmental Law Futures in the Anthropocene......Page 217
19.1 Introduction......Page 218
19.2.1 Moving Beyond the Neoliberal Capitalist System......Page 220
19.2.2 Exploring Broader Framings of Our Relationships with Nature and Human Well-Being......Page 221
19.3 Research and Action Priority 2: Developing Integrated Approaches......Page 223
19.3.1 Systems Thinking......Page 224
19.3.2 Transdisciplinarity......Page 226
19.3.3 Instrumental and Institutional Coordination......Page 227
19.4.1 Applying and Extending Existing and Emerging Legal Principles......Page 228
19.4.2 Human Rights and Basic Human Needs......Page 231
19.4.3 Developing and Drawing on Existing Areas of Law and Legal Mechanisms to Give Effect to a More Nuanced, Equitable and Sustainable Relationship with Our Planet......Page 232
19.5.1 Mobilise Broader Coalitions of Actors......Page 233
19.5.2 Coordination Across Scales......Page 235
19.6.1 Transparency and Accountability......Page 236
19.6.2 Access to Justice......Page 237
19.6.3 Faster and More Responsive Decision-Making......Page 238
19.7 Conclusion......Page 239
References......Page 241

Citation preview

Michelle Lim Editor

Charting Environmental Law Futures in the Anthropocene

Charting Environmental Law Futures in the Anthropocene

Michelle Lim Editor

Charting Environmental Law Futures in the Anthropocene

123

Editor Michelle Lim Adelaide Law School University of Adelaide Adelaide, SA, Australia

ISBN 978-981-13-9064-7 ISBN 978-981-13-9065-4 https://doi.org/10.1007/978-981-13-9065-4

(eBook)

© Springer Nature Singapore Pte Ltd. 2019 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

Foreword

Earth system scientists suggest we might be entering the Anthropocene, a new geological epoch, where humans have become a global geophysical force, dominating and changing the Earth system. While the Anthropocene must still be officially designated as such, it has since become a useful discursive framework that now occupies a central position in the sustainability discourse. In fact, the Anthropocene has become an important, if not entirely uncontentious, issue permeating the many multidisciplinary conversations that grapple with the place and future of humans as part of the Earth system. Originally emanating from the domain of natural sciences, the Anthropocene has now also become a focus of social sciences and the humanities, evidenced in particular by its recent inclusion as one of the four contextual conditions of the new Science and Implementation Plan of the Earth System Governance Project (the others are transformations, inequality and diversity). Curiously, however, when compared to the geosciences and the Earth system governance research agendas, the Anthropocene remains largely underexplored in the juridical domain, with only a few lawyers having interrogated its implications for law and legal science generally, and for environmental law specifically. Those of us that are investigating the relationship between the Anthropocene and law broadly agree that law is a critical element of the human–political–social system, and an important part of those social regulatory institutions that humans consciously design to establish and maintain a specific type of desired social order. This is increasingly an order that is being destabilized by Earth system changes, as the impacts of climate change on societies across the globe clearly suggest. The Anthropocene is therefore critically relevant to law and legal science, while conversely, law has an important role to play in contemplating and ensuring Earth system integrity and future life on Earth. The intimate link between law and the Anthropocene will ask of us to consider among others, how and the extent to which the Anthropocene is changing our perceptions of law as a regulatory institution, including our trite perceptions of law’s content, purpose, objectives and design. It will also require of us to reflect on human agency and the role of law in governing human actions in the Anthropocene, v

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Foreword

including the impacts of these actions on the Earth system and the impacts of other Earth system processes on human existence. The Anthropocene in this sense allows for an opening up of hitherto prohibitive epistemic ‘closures’ in the law, of legal discourse more generally, and of the world order that the law operatively seeks to maintain, to a range of other understandings of, and cognitive frameworks for, global environmental change. It further reveals the context to contemplate possible ways to more innovatively mediate this change through the law. Embracing many of the foregoing considerations, this book is squarely aimed at addressing the underexplored role of law and legal science in relation to the Anthropocene. Edited by Michelle Lim, one of Australia’s leading environmental lawyers, the book offers an impressive collection of critical reflections on the myriad of emerging challenges for environmental law in the Anthropocene, while at once also describing the importance of, and critically urgent need for, developing strategies to deal with the Anthropocene’s mounting socio-ecological crisis. To this end, the book very specifically focuses on the role of environmental law in shaping sustainable futures. But the book also aims to do more than this: representing an impressive collection of jurisdictions from around the globe, it provides rich cosmopolitan perspectives from an emerging generation of environmental lawyers to voice their concerns and views in relation to environmental law futures in the Anthropocene, while it also seeks to foster intergenerational dialogue through contributions from established scholars. To this end, contributors to the volume broadly reflect on a range of burning questions including: critically redefining the human–environment relationship in the Anthropocene; the imperative of maintaining planetary order while improving international collaboration; ways to implement transformative law and governance for sustainable and equitable futures; and finally, a forward-looking research agenda that must further interrogate the place and role of environmental law in the Anthropocene. While one can easily become despondent in the face of the seemingly insurmountable challenges that the Anthropocene throws up for humanity, this book is proof that there is an alternative, more sanguine narrative out there that speaks of hope and that encourages us to resolutely confront the socio-ecological crisis of the Anthropocene in innovative and creative ways through the art and craft of environmental law. Louis J. Kotzé Research Professor of Law North-West University Potchefstroom, South Africa

Contents

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Securing Equitable and Sustainable Futures in the Anthropocene—What Role and Challenges for Environmental Law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Michelle Lim

Part I 2

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Re-defining Human-Environment Relationships

Rights of Nature in the Anthropocene: Towards the Democratization of Environmental Law? . . . . . . . . . . . . . . . . . María Valeria Berros

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Moving Towards “Ecological Civilization” in the Anthropocene: The Future of Environmental Law in China . . . . . . . . . . . . . . . . . . Di Zhou

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International Environmental Law in the Anthropocene: Addressing the Gaps Towards ‘Sustainable Development Law’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fabiano de Andrade Correa and Marina Demaria Venâncio

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Ecological Restoration as a Legal Duty in the Anthropocene . . . . . An Cliquet

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Governance for Protected Areas “Beyond the Boundary”—A Conceptual Framework for Biodiversity Conservation in the Anthropocene . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Toshinori Tanaka

Part II 7

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Planetary Order and International Collaboration

The Ocean-Climate Nexus in the Unfolding Anthropocene: Addressing Environmental Challenges Through International Law and Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stephen Minas

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Consequences of the Recognition of Forest Protection as a Common Concern of Humankind for the Anthropocene . . . . . Maša Kovič Dine

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International Water Law in Multi-scale Governance of Shared Waters in the Anthropocene: Towards Cooperation, not “Water Wars” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Remy Kinna

10 Rising China and Antarctic Futures in the Anthropocene . . . . . . . 121 Nengye Liu 11 The International Environmental Court—A Necessary Institution for Sustainable Planetary Governance in the Anthropocene . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 Alexander M. SoIntsev 12 Global Assessment and Review: The Importance of a Transparency Turn in International Environmental Law . . . . 139 Nafiseh Jafarzadeh Part III

Implementing Transformative Law and Governance for Sustainable and Equitable Futures

13 Indigenous Rights and Universal Periodic Review: A Confluence of Human Rights and Environmental Issues . . . . . . . 151 Jonathan Liljeblad 14 Constitutionally Shackled: The Story of Environmental Jurisprudence in India . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Nupur Chowdhury 15 Liability for Environmental Harm as a Response to the Anthropocene . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171 Jacob Phelps, Carol Adaire Jones and John Pendergrass 16 On the Hypotactic Imperative for a Transition from the Anthropocene to the Sustainocene . . . . . . . . . . . . . . . . . . 181 Benjamen Franklen Gussen 17 Municipal Solid Waste Management in India: Why Judicial Activism and Legislative Interventions Have Failed to Effectively Address This Issue? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 Maneka Kaur 18 Can South African Planning Law and Policy Promote Urban Sustainability in the Anthropocene? . . . . . . . . . . . . . . . . . . . . . . . . 203 Angela van der Berg

Contents

Part IV

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Research Agenda for Sustainable and Equitable Environmental Law Futures in the Anthropocene

19 Pathways to Equitable Sustainability in the Anthropocene: An Agenda for Legal Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221 Michelle Lim

Chapter 1

Securing Equitable and Sustainable Futures in the Anthropocene—What Role and Challenges for Environmental Law? Michelle Lim Anthropocene Anthropo- = human (from Ancient Greek anthr¯opos; ¥νθρωπoς); -cene = new/recent (from Ancient Greek kainos; καιν´oς). “The Anthropocene epoch is a new geological interval that intimately fuses two major components—Earth itself and the human population which thrives upon it. This epoch marks the apex of our hegemony on Earth. It highlights the permanent changes humanity has imposed on planetary operating systems. And it emphasizes the point that we are now the authors of our own destiny. Do we shape our future by considered choice or have we been victimized by an innate propensity to maximize … everything.”. – Stephen Purdey (2018) Masters of our fate?

Abstract This introductory chapter sets out the emerging challenges for environmental law in the Anthropocene. It highlights the importance of developing strategies to deal with a range of plausible futures. The chapter identifies the role of environmental law in shaping sustainable and equitable futures. It also highlights the shortcomings of and obstacles for contemporary legal and institutional frameworks which might limit the potential of legal instruments to address the challenges of the Anthropocene. The chapter concludes by introducing each of the subsequent chapters and demonstrating how the multifaceted issues explored in the book address the role for law in shaping sustainable and equitable futures amidst significant uncertainty. Keywords Sustainable legal futures · Anthropocene · Equitable sustainability

M. Lim (B) Adelaide Law School, University of Adelaide, Adelaide, Australia e-mail: [email protected] © Springer Nature Singapore Pte Ltd. 2019 M. Lim (ed.), Charting Environmental Law Futures in the Anthropocene, https://doi.org/10.1007/978-981-13-9065-4_1

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The Anthropocene denotes the current geological epoch where human impacts are so great that they constitute a geophysical force akin to a large meteorite. In the Anthropocene, the stable functioning of Earth’s life support systems, a prerequisite for continued human development, is under threat (Griggs et al. 2013; Steffen et al. 2007). Impacts include diminishing food production, water scarcity, extreme weather, ocean acidification, deteriorating ecosystems and sea-level rise (Griggs et al. 2014). Present and future generations therefore face challenges never before seen in human history. At the same time, the quest to achieve sustainable and equitable futures is fraught with uncertainty. This book is grounded in pragmatic optimism. Recent history demonstrates that unprecedented social-environmental upheavals can be the catalysts for major societal transformation (Bennett et al. 2016). Further, if we have arrived at this juncture in Earth’s history due to the application of human ingenuity, then surely it is also within us to shape desirable futures in the epoch of humans. To do so, however, a fundamental shift is needed from the collision course we have set ourselves on. Not only do we need to transform our current relationship with the planet, we also need a range of governance options to respond to the uncertainty and surprise that characterise the Anthropocene. Accordingly, this body of work explores a range of plausible future realities for the Earth, her inhabitants and environmental law in this new epoch of Earth’s history. This book ultimately aims to chart a research and action agenda for sustainable and equitable environmental law futures in the Anthropocene. To achieve this aim, understandings from diverse practices, worldviews and geographical regions are needed to bring about the transformative change required to address the new realities of the Anthropocene (Bennett et al. 2016; Leach et al. 2018). This book recognises that the emerging generation are not only key stakeholders in the issue of planetary sustainability but that they also bring unique perspectives, methods and tools to addressing the challenge and surprise of global change (Lim et al. 2017). As the emerging generation of environmental law practitioners and scholars have a vested interest in the planet of the future, this collection of chapters elevates the voices of the ‘the lawyers of the Anthropocene’ while fostering intergenerational dialogue through contributions from leading scholars. The result is a diverse collection of authors from each of the Earth’s inhabited continents who examine a wide range of issues across sectors as well as geographical and governance scales. The overarching research question, interrogated in each chapter, is this: How can law facilitate equitable futures on planet Earth within a safe operating space for humanity?1 This question is examined in three parts. Part I invites a fundamental re-think of the relationships between humans and our planet. In Part II, issues of planetary governance are explored. Here, a recurring theme is the necessity for greater collaboration not only between and within countries but also across legal instruments and 1 Rockström

et al. (2009) define a series of biophysical boundaries at the planetary level. These planetary boundaries include issues such as climate change, biodiversity, freshwater use and ocean acidification. As discussed below, Rockström et al. coin the term: ‘safe operating space for humanity’ to denote the planetary-scale limits that human activity needs to stay within in order to maintain the function of the Earth system in a manner which will allow continued human development.

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regimes. Part III takes a practical turn and considers what is needed to implement law and governance for sustainable and equitable futures in the Anthropocene. The remainder of this introductory chapter discusses the conceptual foundations of the new geological time period we are now entering and the intrinsically interconnected nature of Earth’s biophysical systems and human societies. It argues that revolutionary approaches to environmental law are required to shape a sustainable and just world in the epoch of humans. It is vital that we think creatively, yet realistically, about the design and implementation of environmental law. The plural ‘futures’ in the title of the book is deliberate. It evokes the need to envision a range of plausible and desirable future states of the Earth and the human systems that operate amidst the uncertainty and surprise of the Anthropocene. This chapter therefore not only describes the interconnected sustainability and equity issues that need to be addressed simultaneously, it also argues that effective environmental laws need to be developed by considering a range of possible futures. This chapter concludes by introducing each of the chapters which combine in Chap. 19 as a research and action agenda for environmental law designed to shape a safe and equitable operating space for humanity.

1.1 The Anthropocene The Anthropocene is characterised by a state change in the Earth system (Brondizio et al. 2016; Crutzen 2002; Crutzen and Stoermer 2000; Waters et al. 2016). The Earth system encompasses the interconnected natural cycles and interacting biophysical and chemical processes of our planet (IGBP 2015). The state change observed in the onset of the Anthropocene refers to the disruptions to the Earth system which have moved the planet’s physical, biological and chemical systems beyond the stable functioning observed in the Holocene. The Holocene began approximately 11,700 years ago and provided the conditions for human societies to flourish. It is the geological time period that preceded the Anthropocene. The Holocene encompassed most of the history of humanity and was characterised by rapid growth of human populations across the planet. The stable functioning of Earth’s life support systems, characteristic of the Holocene, are being increasingly disrupted. Though human influence of the Earth system has occurred over centuries, it is only recently that anthropogenic activities have had a significant impact on the structure and function of this system (Bai et al. 2016; Steffen et al. 2015a). The expression ‘Anthropocene’ was first proposed at the start of the new millennium (Crutzen 2002; Crutzen and Stoermer 2000). Despite its conceptual foundations in geology, it has come to encompass a range of geological, ecological, sociological and anthropological changes in the Earth’s recent history (Waters et al. 2016). References to the Anthropocene are increasingly found across a range of disciplines. The term has come to encapsulate the unprecedented planetary-scale changes caused by anthropogenic activity (Brondizio et al. 2016); the novel challenges and opportu-

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nities which come about from appreciation of these changes; and the new thinking required to successfully navigate global environmental change (Bai et al. 2016). There is mounting biophysical evidence that the Anthropocene is indeed our new reality. The burden of human activities, particularly since the ‘Great Acceleration’2 of the 1950s, is at several orders of magnitude greater than that of the Holocene. For example, current atmospheric levels of carbon dioxide, nitrous oxide and methane (i.e. the three greenhouse gases) were not observed at any time during the Holocene nor was the considerable decrease of the Ozone layer (Ciais et al. 2013; Steffen et al. 2015a). There has also been an incomparable increase in marine fish capture (Steffen et al. 2015a) while human-induced biodiversity loss has lead us towards the planet’s sixth mass extinction (Ceballos et al. 2015). The nitrogen cycle has undergone overwhelming change in the last century due to the manufacture and use of artificial fertilizers (Galloway et al. 2008). At the same time, the carbon cycle of the ocean is changing faster than any other time in the last 300 million years. This is due to the rapid increase of carbon dioxide in the atmosphere which has resulted in growing acidification of the oceans due to extensive changes in ocean chemistry (Hönisch et al. 2012). Human impacts on the planet are so great that they are observable even in the geology of the planet. A review of several lines of evidence in ice and soil concludes that humans have altered the Earth system so profoundly that recent and currently forming deposits in the rock layer are radically different from any previous epoch including the Holocene (Waters et al. 2016). Of particular note is the widespread appearance of new materials and ‘rock’ types in the form of manufactured materials. Predominant among these are plastics, aluminium and concrete—the products of landfill, mining, construction and urbanisation. Many of these are characterised as new ‘rock’ due to their long-term persistence. Plastics in particular will likely be readily identifiable in fossil and geochemical records of the future due to their chemistry and resistance to decay. Meanwhile, nuclear weapons testing, particularly from 1961 to 1962, is the global activity which has the most widespread simultaneous impact across the planet (Waters et al. 2016). Waters et al. (2016) also observe, in the rock layer, many of the unparalleled changes to the Earth system highlighted earlier in this section. This includes substantial elevations in particles related to the burning of fossil fuels. Correspondingly, glacial retreat is readily observable in the abrupt shift from glacial sediments to organic matter in Greenlandic ice. Global land use change has resulted in the alteration of soil processes. This has consequences in freshwater, marine and terrestrial ecosystems far from their initial point sources. At the same time, sediment retention behind large dams has had a significant impact on sediment flow to large deltas while fertiliser use has caused a doubling of nitrogen and phosphorus in soil profiles at a global scale (Waters et al. 2016). 2 The

Great Acceleration refers to the overwhelming socio-economic and biophysical changes observed across the planet from the 1950s onwards (Steffen et al. 2015a). This is characterized by a stratospheric rise in resource consumption and economic activity (Waters et al. 2016). The onset of the Great Acceleration is therefore widely viewed as a key candidate for the start of the Anthropocene (Zalasiewicz et al. 2012).

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This section has highlighted the overwhelming evidence that the Anthropocene has indeed arrived. This arrival brings with it unprecedented change to the Earth system and corresponding challenges to how we might sustain a thriving planet.

1.1.1 A Safe Operating Space for Humanity It is unequivocal that species homo sapiens has severely impacted the Earth system and undermined its ability to remain in a Holocene-like state. Nevertheless, maintaining Holocene-esque conditions in the Anthropocene is vital. This is because it is within this setting that humans evolved. A Holocene-like planet is also the only environment that can indubitably sustain human societies. The greater the deviation from Holocene-like conditions the greater the likelihood of a planet unhospitable to further progress of human civilisations (Steffen et al. 2015b). The planetary boundary approach is a science-based framework that articulates global scale ‘safe-limits’ of human activity necessary to retain a Holocene-like environment. These limits describe the planetary processes that maintain Earth system function (Rockström et al. 2009; Steffen et al. 2015b). This framework identifies seven planetary boundaries: biosphere integrity; climate change; ocean acidification; land-system change; freshwater use; novel entities; atmospheric aerosol loading; stratospheric ozone depletion; and biogeochemical flows. The further the limits of a boundary are exceeded, the more likely it is that the Earth system will move into an irreversible, undesirable state. On the other hand, respecting these boundaries likely buys us time to respond to early-warning signals that human activity is approaching a threshold which would lead to abrupt or risky change to the function of the Earth system (Steffen et al. 2015b). The seven planetary boundaries are intertwined within a complex, integrated Earth system (Steffen et al. 2015b). This means each component of the system is connected to other parts of the system through a series of feedback loops. Changes to one part of the system sets into motion a series of impacts across the system through a network of relationships. Initial change at one point of the system then returns to further influence the part of the system where the change occurred. Feedbacks can therefore amplify small changes within the system and therefore have a dramatic effect (Capra and Luisi 2014). As the Earth is a complex system of interacting processes, global change observed in the Anthropocene results not only from the accumulation of impacts at the planetary level. It is also due to the phenomena of emergence which is characteristic of complex systems (Bai et al. 2016). Here emergence refers to new properties or processes that result from interactions among various parts of a system. These properties ‘emerge’ due to the dynamic relationships across the feedbacks of the system and occur only when particular component parts exist together (Capra and Luisi 2014). The characteristic of the Earth as a complex system necessitates a holistic approach to the governance of the planet. Focusing solely on one part of the system will be ineffective at best and will likely result in perverse outcomes.

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Within the interconnected Earth system, the biosphere integrity and climate change boundaries are particularly closely associated. The biosphere encompasses all ecosystems on Earth and the life within it. The biosphere and the climate system have co-evolved over 4 billion years. Transgression of one or more of the other 5 boundaries is likely to severely impact human well-being. This is unlikely to result, in itself, in a change in the Earth system. However, significant changes in either the climate change or biosphere integrity boundaries would likely push the Earth system beyond Earth’s safe operating space (Steffen et al. 2015b). The climate and biosphere integrity planetary boundaries provide the overarching systems within which the other boundaries operate. These two boundaries are in turn regulated by the other 5 boundaries (Steffen et al. 2015b). For example, disruption of the climate system impacts the capacity of living organisms to persist and also contributes to ocean acidification. This further exacerbates conditions for marine life. Meanwhile, thriving terrestrial, freshwater and ocean ecosystems contribute to sequestration of carbon while facilitating the capacity of the planet to respond to global change. There are also significant interactions across other planetary boundaries. Land-system change, for example, severely impacts on biosphere integrity as does the disruption of freshwater sources and biogeochemical flows (particularly the Nitrogen and Phosphorus cycles). If we are to thrive in the Anthropocene, human activity must respect planetary boundaries while recognising the inextricable links and feedbacks across the Earth system. The planetary boundaries concept provides an important framework which underscores the exigency with which environmental issues need to be addressed. It also sets out the pre-requisites for further human development. What is not included in the framework is the varied interests and capacities of Earth’s human inhabitants nor the distributional issues which surround access to nature’s assets (Hajer et al. 2015). A desirable future in the Anthropocene is one that is not only sustainable but also just. The section that follows examines the issues of equity that need to be addressed in this new epoch.

1.2 Sustainable and Equitable Futures in the Anthropocene The capacity to prosper in the Anthropocene varies widely across human societies. Those most severely affected by global change are likely to have contributed inconsequentially to the shift from the stable state of the Holocene. Excessive resource use by the wealthiest 10 per cent of the global population is the greatest source of stress on planetary boundaries (Raworth 2012). Most of this impact has arisen from consumption in high-income economies (OECD countries). While population growth since the 1950s has largely occurred in non-OECD countries, as of 2010, the economies of OECD countries still make up 74% of global GDP. This is despite OECD countries hosting only 18% of the global population. The large scale consumption of the majority of the Earth’s resources by a small fraction of the planet’s

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human inhabitants underscores the extent of historical and continued global inequity (Steffen et al. 2015a). The people of the developed world, and in particular the rich among these populations, have reaped the benefits of such exploitation for many generations. Malm and Hornborg (2014) therefore caution against a narrative which attributes the impacts of the Anthropocene to the human species as a whole. Holding the entire human species equally accountable for the global shift from the Holocene, they argue, ignores the intra-species inequalities which have contributed to global ecological catastrophe and inhibits attempts to successfully navigate the Anthropocene (Malm and Hornborg 2014). For example, the sixth of the human population which have not contributed to greenhouse gas emissions should not be held responsible for climate change or corresponding measures to address the climate crisis (Malm and Hornborg 2014; Satterthwaite 2009). Recognising distributional issues and opportunities regarding the access and use of environmental resources and services (Hajer et al. 2015) is also fundamental to sustainability governance at multiple scales. This section highlights the need to acknowledge the interconnected and coevolving nature of equity and sustainability. As such, the section commences with a discussion of the range of inequities that need to be addressed in the Anthropocene while introducing the goal of ‘equitable sustainability’ (Leach et al. 2018). Next, attention shifts to the importance of envisaging a range of plausible future states so that frameworks can be set up today to respond to uncertain futures. Here, emphasis is placed on shaping positive visions of the future. Finally, I examine the role of law and governance in the Anthropocene and the potential of environmental law to shape sustainable and equitable futures.

1.2.1 Global Inequities Challenge Planetary Sustainability Just as each of the planetary boundaries are interlinked so too are their connections to the well-being of the planet’s human inhabitants. Feedback loops across the Earth system and human societies can amplify environmental and social impacts. Environmental shocks and stresses often aggravate economic, social and spatial inequities. This in turn can force the poorest and most vulnerable into unsustainable practices. Feedbacks across interconnected social-ecological systems thus result in a vortex of further vulnerability and human and environmental impoverishment (Leach et al. 2018). At the same time, there is the need to recognise the co-evolution of human and biophysical systems throughout history and into the future (Bai et al. 2016; Leach et al. 2018). Policies which aim only to address human well-being will likely exacerbate environmental stress and vice versa (Raworth 2012). Addressing the varied distribution of costs and benefits of environmental change is fundamental to achieving greater equity. There is therefore the need to focus on distributional issues not only across time and space but also within and between social groups. As discussed above, much of the impact on the Earth system has stemmed from unsustainable production and consumption in developed countries. Shifts in such

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trends have begun to emerge with the growth of the middle class in BRICS nations (i.e. Brazil, Russia, India, China and South Africa). For example, since the 1970s, most of the growth in fertilizer use has occurred in BRICS countries and from 2000 onwards, paper production, telecommunication devices and the number of motor vehicles have predominantly occurred in non-OECD countries (Steffen et al. 2015a). The transfer of sources of greenhouse gas emissions has been particularly pronounced with China surpassing the USA in 2006 as the world’s largest emitter of carbon dioxide; then by 2013, Chinese per capita emissions had exceeded that of Europe (Friedlingstien et al. 2014 in Steffen et al. 2015a). The historic inequalities that arise from the cumulative impacts and unequal distribution of benefits of the Great Acceleration continue, however, to complicate efforts to address the implications for the Earth system (Steffen et al. 2015a). Further, though developments in non-OECD countries have contributed to lifting many out of absolute poverty, inter- and intra-country inequality still has a significant impact of individual and societal well-being (Steffen et al. 2015a). For example, the burdens of climate change, pollution and the degradation of environmental and productive landscapes are frequently distributed unevenly across class, ethnicity and geography. This is compounded by gender inequities which result in the costs of environmental change being borne differentially by men and women (Leach et al. 2018). Equity is complex. At its core are the dynamics of how resources are distributed across social groups. It has long been recognised that income inequality is just one form of inequity that impacts human well-being. Chambers and Conway (1992) for example highlighted the natural, economic, human, social and physical forms of capital required for sustainable livelihoods. At the same time, they emphasised the importance of issues of access to and influence over these resources. Similarly, Sen (1999) articulated key ‘freedoms’ (economic opportunities; political liberty, social empowerment, dignity, good health and education) as being fundamental to human well-being. Appreciation of the wide range of interacting factors that impact well-being that Chambers and Conway (1992) and Sen (1999) highlighted in the 1990s remains essential in the quest for sustainable and fair futures in the Anthropocene. Leach et al. (2018) contribute to further understanding of equity in the reality of global change by pointing to the co-production of inequities and unsustainabilities through the imbalanced distribution of resources across social, economic, political and spatial contexts and scales. They also highlight the importance of addressing ‘equity between who’, i.e. the disparities across groups. Examples of such social groups include identifiable differences due to age, gender, sexuality and race. It also brings in consideration of intergenerational equity as well as equity across scales (e.g. urban/rural, coastal/mountainous). At the international level, this takes the form of relative positions in global geo-political orders; nationally available capital (in various forms) and experience of global negotiation practices (Leach et al. 2018). To the above, Leach et al. (2018) add further nuance to how we understand equity by drawing on multiple theories of justice. Distributional equity, the allocation of costs, benefits and resources among social groups, has long been the main focus of discussions of equity. Leach et al. (2018) build on this with particular focus on

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the work of Fraser (1995, 2009). Here, recognitional equity and procedural equity are identified as being just as essential to achieving broader equity as distributional equity. Recognitional equity refers to the respect for the identity and values of various social groups (e.g. those identified by nationality, gender, sexuality, ethnicity etc.). Procedural equity concerns the processes by which decisions are made and who has a say in making these decisions. The attention to politics and social influence is essential to understanding the full picture of equity into the future and parallels the earlier work of Chambers and Conway (1992) and Sen (1999) discussed above. The weight of moral imperatives alone are reason enough to continue to address the complex issues which lead to the unfair distribution of the Earth’s limited resources. Meanwhile, addressing the basic needs of the world’s most disadvantaged will have limited impacts on the Earth system. Global poverty eradication, for example, can be achieved without significant impact on planetary boundaries. Only 1% of current global food supply is required to meet the calorific requirements of human populations currently experiencing hunger; supplying electricity to 19% of the world’s population who presently go without would result in a less than 1% increase in global CO2 emissions; and only 0.2% of global income is needed to end global income poverty (Raworth 2012). At the same time, global and national laws and policies can enhance the agency and capacity of poorer groups to avoid continuing cycles of injustice perpetuated by the rich and powerful (Leach et al. 2018). The interconnected nature of social and ecological systems also means that a desirable future planet has to be not only environmentally sustainable but also just. Though unsustainable practices can exacerbate poverty and inequity, strides in promoting the various forms of equity described above can reverse detrimental feedbacks across interlinked social, economic and biophysical systems. Building capabilities and various forms of capital (Chambers and Conway 1992), for example, can go a long way to enable marginalised groups and nations to engage in sustainable practices (Leach et al. 2018). However, while lip-service is paid broadly to the need for greater equity between and within countries, inequality continues to rise in most regions of the world (Pickett & Wilkinson 2015). Resistance to genuine transformation towards greater equity stems from the false equivalence attributed to human well-being and economic activity and consumption (i.e. gross domestic product (GDP) (Steffen and StaffordSmith 2013). At the same time, there is insufficient recognition that addressing inequality is in the social self-interest of wealthy individuals (Wilkinson and Pickett 2009; Pickett and Wilkinson 2015) and wealthy countries (Steffen and Stafford-Smith 2013). There is, for example, growing evidence that large income disparities are detrimental to health outcomes for both the rich and the poor (Pickett and Wilkinson 2015). At the same time, income inequality contributes to social dysfunction across the board (Wilkinson and Pickett 2009). The reverse is also true with greater income equality contributing to greater individual and social well-being (Wilkinson and Pickett 2009). Therefore, not only is there the need for more nuanced understandings of human well-being which do not rely on raising consumption (Costanza et al. 2014; Kubiszewski et al. 2013; Steffen and Stafford-Smith 2013). We should also

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promote instead equitable human development and sustainable livelihoods through building the various forms of capital and freedoms discussed above (Chambers and Conway 1992; Sen 1999). There also needs to be greater appeals to the powerful and wealthy which are grounded not only on moral and altruistic grounds but on self-serving ones too.

1.2.2 Towards Equitable Sustainability in the Anthropocene Leach et al. (2018) coin the term ‘equitable sustainability’ to denote a desirable operating space for humanity in the Anthropocene. Here equity and sustainability are recognised as being so closely connected that they are emergent outcomes of coupled socio-ecological systems. Coupled systems are those which are intimately intertwined through reciprocal exchange of flows of material, energy or information (Alberti et al. 2011). Coupled socio-ecological systems therefore refer to the interactions between biophysical and human systems that form a new co-evolving complex adaptive system. The emergent outcomes of a just and sustainable world thus arise from the feedbacks across networks formed between the Earth system and human societies. Leach et al. (2018) stress the necessity of combining new transdisciplinary approaches and ways of thinking with a broad range of perspectives to address the intertwined components of equity and sustainability. Viewing the Anthropocene through the lens of equitable sustainability goes beyond conceptualising equity and sustainability as biophysical or social limits or foundations. Instead, focus is on understanding the dynamic interactions across human and natural systems and the way in which this system could develop into the future. These interactions are described as pathways. Human and natural systems could co-develop in ways which threaten components of sustainability or equity, or both. Other pathways could lead to a planet which is both equitable and sustainable (Leach et al. 2018). The emphasis on pathways underscores the importance not only of a possible future state of the planet but also the route taken to get there. Law and governance play a fundamental role in shaping pathways towards equitable sustainability in the Anthropocene. This volume not only acknowledges that humans have become the dominant geophysical force for global change. It also recognises the disproportionate impact that some of our species and their ancestors have and continue to have on the planet. At the same time, the capacity to respond to the challenges of human-induced planetary phenomena varies starkly within and between societies. It is therefore fundamental to a sustainable and just planet that resources are not only used in a more efficient manner. What is also needed is far more equitable distribution of incomes and resources within and between countries (Raworth 2012) and strategies which treat equity and sustainability as interconnected and co-evolving.

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1.2.3 Plausible and Desirable Environmental Law Futures in a Good Anthropocene Bai et al. (2016) emphasise that though the Anthropocene has emerged from past and present human impacts on the Earth system, its key importance stems from the opportunity it presents to guide ‘attitudes, choices, policies and actions that influence the future.’ The complex interdependencies and contradictory and shifting nature (Hjorth and Bagheri 2006) of global environmental change means that governing the Anthropocene is an archetypal ‘wicked’ problem. It is therefore important to envision a range of plausible and desirable futures instead of attempting to predict a single future state (Bai et al. 2016). Such ‘futures thinking’ facilitates contingency planning (Hjorth and Bagheri 2006) and promotes the development of innovative approaches to tackle the ‘wicked’ problems of the Anthropocene. Scenarios are the key mechanism of futures studies. They consist of narratives which describe a range of plausible future states. This mechanism provides the means to think deeply and creatively about the future while preparing for a range of plausible futures (Bishop et al. 2007; Lim and Allan 2016). This is because scenarios facilitate consideration not only of what the future might look like but importantly how to put in place contingencies to address emergent threats which result from interacting socio-ecological systems. Scenarios thus reduce the risk of being unprepared for the uncertainties of the future (Bishop et al. 2007). The development of narratives of plausible future states characterised previous approaches to futures studies. In the context of the Anthropocene, there are growing calls to envisage futures that are not only plausible but also desirable (Bai et al. 2016; Bennett et al. 2016). Global environmental change requires us to divert efforts from futures which continue existing pathways towards transformative visions which enable societies to address current sustainability crises in a way that harnesses the opportunities of the current epoch, draws on multiple world views and ultimately achieves equitable sustainability in a ‘Good Anthropocene’3 (Bai et al. 2016; Bennett et al. 2016; Leach et al. 2018). Fundamental to this book is the exploration of a range of plausible futures for environmental law. Some chapters suggest potentially trajectories for further development of legal and governance structures; others engage with the alternative worldviews essential to the new-thinking required in this new epoch; still others focus on new ways to envisage legal instruments and institutional structures. Common to all chapters is a re-imagining of law and governance for the Anthropocene. The sum of this is multiple positive narratives for environmental law aimed towards shaping an equitable and desirable future for the planet. This in turn forms the starting point for

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et al. (2016) emphasise the importance of positive visions of the future that draw on a diverse range of values, practices, worldviews and regions to accelerate change which goes beyond incremental improvements. Moving beyond dystopian visions of the future thus enables a focus on hopeful elements of the present to form pathways to a future which is ‘just, prosperous and ecologically diverse’, i.e. a Good Anthropocene.

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a research and action agenda for environmental law (Lim Chap. 19) which is based on visions of a Good Anthropocene.

1.3 Charting Environmental Law Futures in the Anthropocene The feedbacks across planetary boundaries mean that we need to simultaneously address multiple interacting environmental processes at a global scale if we are to remain within a safe operating space for humanity (Steffen et al. 2015a). There is also the need to recognise and understand the multiple and complex relationships between human societies and biophysical systems (Raworth 2012) when designing legal and governance systems for the Anthropocene. As discussed at the start of this chapter, the overarching research question of this book is: How can law facilitate equitable futures within a safe operating space for humanity? Here, law is broadly defined to include the range of norms which shape human behaviour as well as the institutions and resources necessary to give effect to such norms. This book is concerned less with debates of when and whether our planet entered the epoch of the Anthropocene (indeed, alternative approaches are discernable across the various chapters). Rather, it is forward-looking. The book recognises the undeniable impact of humans particularly since the 1950s. From this, focus is on hopeful elements of the immediate past and the present and the belief that if our species has been able to affect such significant change in the Earth System then we also have the power to create an alternative destiny for ourselves and those who will inherit the Earth. The focus is thus on law as an important tool for humanity to shape sustainable, equitable and desirable futures for the planet. To answer the overarching research question the book proceeds in three parts. The first part focuses on the ‘Anthropo-’ (i.e. the human) component which characterises the current Epoch. It encourages examining anew the relationships between homo sapiens, other life on Earth, and ultimately the planet which we share in common. The next part explores the structures and collaborations required at the planetary level. Finally, key implementation considerations are interrogated across a range of scales and jurisdictions. Each part is introduced below.

1.3.1 Re-Defining Human-Environment Relationships As emphasised above, equitable sustainability in a Good Anthropocene requires a radical departure from our current relationship with the Earth (Bai et al. 2016; Bennett et al. 2016; Leach et al. 2018; Pereira et al. 2018). A diversity of values,

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worldviews and cultures are fundamental to shaping desirable futures which maintain the beneficial contributions that the natural world provides to human well-being (Bennett et al. 2016; Díaz et al. 2018). Part I responds to the calls to redefine the dominant narrative of the relationship between humans and the environment. It begins with an examination of the rights of nature in the context of Latin America (Berros, Chap. 2). This region has been at the forefront of legal responses which incorporate Indigenous worldviews which see humans as part of, and not superior to the environments in which they inhabit. Berros advocates greater interdisciplinary collaboration to advance the rights of nature in law and beyond. Earlier in this chapter, I emphasised the importance of appreciating the co-evolving nature of socio-ecological systems (see Bai et al. 2016; Leach et al. 2018). To this end, Zhou (Chap. 3) and de Andrade Corrêa and Venâncio (Chap. 4) examine two conceptual framings which have the potential to facilitate incorporation of the complex interdependencies of socio-ecological systems into law. Zhou discusses the capacity of the concept of ‘ecological civilization’ to inform development of Chinese environmental law in the Anthropocene. Meanwhile, de Andrade Corrêa and Venâncio consider similar issues at the international level when calling for environmental law to be re-characterised as sustainable development law. Both papers, from the ‘global South’ emphasise the importance of mainstreaming environmental concerns into the economic agenda in a manner which does not impede continued advancement of human well-being. The final two chapters of Part I, recognise the significant impact humans have had on the biosphere. The focus on biodiversity in Chaps. 5 and 6 reflect the urgency with which the diversity of life on Earth needs to be addressed (see Steffen et al. 2015b). If we are to maintain the diversity of life on Earth we need to operate beyond traditional means of biodiversity conservation. Cliquet (Chap. 5) points out that human perturbations of the natural world are so great that protecting intact areas alone will be insufficient in the face of global change. Instead, there is the need to also rehabilitate degraded areas not only as an environmental management strategy but importantly also as a legal obligation. In a similar vein, Tanaka (Chap. 6) discusses how environmental law should be developed to facilitate the conservation of biodiversity ‘beyond the boundary’ of traditional protected areas. ‘Beyond the boundary’ conservation is explored first in the context of the Japanese National Park system. This is then extended to highlight the broader global applicability of the approach through examination of the potential application of the ‘beyond the boundary’ model in UNESCO Biosphere reserves. The chapters in this Part introduce us to unique and novel approaches to redefining our relationships with the planet. Nevertheless, a common and clear message emerges: we need transformative and interdisciplinary approaches to address interconnected challenges and opportunities across indivisible social and biophysical systems. Part I draws discussions from earlier in this chapter into the legal context while providing a range of tangible legal mechanisms for tackling these challenges into the future.

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1.3.2 Planetary Order and International Collaboration Part II of this book focuses on governance at the planetary scale. The chapters in this Part consider the international legal frameworks of a range of planetary boundaries and the feedbacks between them as well as the institutional and implementation mechanisms required. First, Minas (Chap. 7) explores feedbacks across the key planetary boundaries of climate and biosphere integrity. Placed within the context of marine ecosystems the chapter also addresses the further boundary of ocean acidification. With feedbacks of the ocean-climate nexus as the starting point, the chapter explores how greater links can be made between the corresponding legal regimes of the United Nations Convention on the Law of the Sea (UNCLOS) and United Nations Framework Convention on Climate Change (UNFCCC). This discussion is then applied to three case-studies: emissions from shipping, ‘blue carbon’—climate mitigation in coastal ecosystems, and ongoing discussions on a potential treaty on biodiversity in areas beyond national jurisdiction. In Chap. 8, Koviˇc Dine continues, in a terrestrial context, the discussion of planetary boundaries and coordination across legal regimes found in Chap. 7. Here the focus is on forests—the sustainable management of which is vital to staying within the biosphere integrity boundary. This chapter advances the argument that the Anthropocene requires us to revisit the concept of ‘common concern’ of humankind and in particular that this should be applied to the world’s forests. Again reflecting the close relationship between the climate and biodiversity planetary boundaries, the chapter draws on the legal regimes of biodiversity and climate change while also bringing in discussion of common concern in the context of intangible cultural heritage. In acknowledging forests as a common concern, Koviˇc Dine calls for multi-stakeholder cooperation to enable greater protection of this global asset held in common. The freshwater planetary boundary is the focus of Chap. 9. Here Kinna highlights how the two global transboundary water conventions, both now in force, provide reason for optimism for continued and increasing global and transboundary collaboration in the management of the world’s multiple watercourses that are shared by more than one country. To avoid transgressing the freshwater planetary boundary, however, Kinna emphasises the importance of continued and nuanced hydro-diplomacy. Liu (Chap. 10) drives home the significance of the geopolitical context in shaping and implementing international legal developments. He does so through examination of the role of the rising global power of China in shaping environmental and legal futures at one of the final frontiers of human activity on our planet: Antarctica. Collaboration is a clear and common theme that arises in the examination of the global governance of planetary boundaries in each of the above chapters. The chapters not only call for greater cooperation between and within countries but also across legal regimes and corresponding secretariats. This discussion culminates in Chap. 11 where SoIntsev calls for the formation of the International Environmental Court which would facilitate instrumental and institutional fragmentation across environmental and human rights instruments. In doing so SoIntsev underscores fur-

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ther that legal regimes need to recognise the indivisible nature of human and natural systems and governance mechanisms must concurrently address issues of sustainability and equity. The discourse in this Part is rounded off by directly addressing mechanisms which enable effective implementation at the global level. Here, Jafarzadeh (Chap. 12) highlights that due to the complexities and uncertainties of the Anthropocene, reliable data and exchange of information is more essential to good planetary governance than ever before. This, Jafarzadeh argues, in combination with transparency mechanisms and follow-up is key to enabling better global scale collaboration as well as the smarter and faster global decision-making required in this new epoch.

1.3.3 Implementing Transformative Law and Governance for Sustainable and Equitable Futures Part III of this book shifts the discussion of earlier Parts to the new agents of change at the national and local levels and the opportunities for implementing transformative law at these scales. Though examination of the Universal Periodic Review mechanism of the United Nations Human Rights Council, Liljeblad (Chap. 13) links the global to the local in the context of Indigenous knowledge. Here, Liljeblad emphasises the fundamental interactions across environmental and social issues and the relationships between human rights and environment related institutions in securing equitable sustainability in the Anthropocene discussed in Part II. He also, provides a pathway for advancing, in practice, the Indigenous worldviews discussed in Part I. Next, Chowdhury (Chap. 14), considers why the Supreme Court of India has been ineffective in addressing the pressing environmental concerns facing the country despite the extent of attention paid to environmental issues by India’s highest court. Through examination of three key Supreme Court cases which canvass a varied range of environmental issues, Chowdhury identifies the overreliance on constitutional remedies as a key impediment to developing more inspired remedies to address environmental harm. In Chap. 15, Phelps et al. introduce liability statutes as an important legal mechanism for enabling the new agents of change. By exploring the potential of liability statutes to deter future harm, Phelps et al. also present an alternative legal remedy that could facilitate the inspired new approaches that Chowdhury calls for in Chap. 14. Rapid urbanisation is one of the key trends of the Great Acceleration and the Anthropocene (Steffen et al. 2015a; Periera et al. 2018). The shift from rural to urban lifestyles is such that the current epoch has been described as the urban Anthropocene [Allen et al. 2016 in van der Berg (Chap. 18 this volume)]. As of 2008, more than half of the global population lives in urban areas (Seto 2010). Cities have therefore been identified as a key stage for transformative change through public-private and social innovations (Hajer et al. 2015). It is fitting therefore that the final 3 chapters of this Part focus on cities and urban livelihoods.

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Gussen (Chap. 16) first makes the compelling case for reorganising human societies so that they are better equipped to respond to the challenges of the Anthropocene. Recognising that governance should occur at the lowest appropriate level, Gussen calls for a new world-system of charter cities instead of nation states. This, he argues, is essential for decision-making in the ‘Sustainocene’. Then, recognising that rapid urbanisation will occur predominately in Asia and Africa (Steffen et al. 2015a), Part III concludes with an exploration the role of law in managing urban challenges on these continents with a specific focus on India (Kaur Chap. 17) and South Africa (van der Berg Chap. 18). In Chap. 17, Kaur tackles the issues of waste management in urban Indian. The chapter therefore not only addresses the key Anthropocene challenge of urbanisation but also the issue of waste and new materials which are some of the defining features of this epoch (see discussion of Waters et al. (2016) above). Kaur, reveals that even an enlightened and activist judiciary combined with a committed legislature can be ineffective if the systematic issues of basic human needs and corresponding infrastructure not addressed. This echoes the calls for holistic environmental governance seen throughout this collection of chapters. Part III aptly concludes with van der Berg’s (Chap. 18) analysis of South African Planning Law. With a focus on addressing spatial and regulatory injustice and unsustainabilities in South Africa, van der Berg brings together the key themes of this book in the urban context. Further, the chapter is set against the background of Sustainable Development Goal 11—the cities goal. This underscores the global relevance of this chapter which sets out how planning law can provide an effective tool to achieving urban sustainability in the Anthropocene.

1.4 Conclusion This collection provides not only narratives but also pathways for positive environmental law futures for people and planet. The book recognises that multiple worldviews and perspectives are fundamental to shaping the sustainable and equitable future our planet and her inhabitants need. At the same time, responding to the challenges of global environmental change requires us to motivate a varied and broader set of actors and to present them with sustainable and just options for individual and collective decision-making. By exploring revolutionary approaches to environmental law across a wide range of jurisdictions and at multiple scales this book ultimately aims to provide a research agenda for environmental law of the Anthropocene and a starting point for further action. We welcome you dear reader to join us on our journey of discovery as we chart new and transformative environmental law futures in the Anthropocene. The seas will likely be rough. Further, despite thorough preparation it is probable that the navigational instruments we have on board will be inadequate and we will need to invent new ones as we go. The voyage will not be easy. It is however necessary. And we need you aboard.

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References Alberti M, Asbjornsen H, Baker LA, Brozovic N, Drinkwater LE, Drzyzga SA, Jantz CA et al (2011) Research on coupled human and natural systems (CHANS): approach, challenges, and strategies. Bull Ecol Soc Am 92(2), 218–228. Allen A, Lampis A, Swilling M (2016) Why untamed urbanisms? In: Allen A, Lampis A, Swilling M (eds) Untamed urbanisms. Routledge, New York Bai X, Van Der Leeuw S, O’Brien K, Berkhout F, Biermann F, Brondizio ES, Cudennec C et al (2016) Plausible and desirable futures in the Anthropocene: a new research agenda. Glob Environ Chang 39:351–362 Bennett EM, Solan M, Biggs R, McPhearson T, Norström AV, Olsson P, Pereira L et al (2016) Bright spots: seeds of a good Anthropocene. Front Ecol Environ 14(8):441–448 Bishop P, Hines A, Collins T (2007) The current state of scenario development: an overview of techniques. Foresight 9(5):5. Brondizio ES, O’Brien K, Bai X, Biermann F, Steffen W, Berkhout F, Cudennec C et al (2016) Re-conceptualizing the anthropocene: a call for collaboration. Glob Environ Chang 39:318–327 Capra F, Luigi Luisi P (2014) The systems view of life: a unifying vision. Cambridge University Press Ceballos G, Ehrlich PR, Barnosky AD, García A, Pringle RM, Palmer TM (2015) Accelerated modern human–induced species losses: entering the sixth mass extinction. Sci adv 1(5):e1400253 Ciais P, Sabine C, Bala G et al (2013). Carbon and other biogeochemical cycles. In: Stocker TF, Qin D, Plattner GK (eds) Climate change 2013: the physical science basis. contribution of working group I to the fifth assessment report of the intergovernmental panel on climate change. Cambridge University Press, Cambridge, New York, pp 465–544 Costanza R, Kubiszewski I, Giovannini E, Lovins H, McGlade J, Pickett KE, Vala Ragnarsdóttir K, Roberts D, De Vogli R, Wilkinson R (2014) Time to leave GDP behind. Nature 505(7483) Crutzen P (2002). Geology of mankind. Nature 415:23 Crutzen PJ, Stoermer EF (2000) The anthropocene. In: Global change newsletter, vol 41. International Geosphere Biosphere Program (IGBP), pp 17–18 Díaz S, Pascual U, Stenseke M, Martín-López B, Watson RT, Molnár Z, Hill R et al (2018) Assessing nature’s contributions to people. Science 359(6373):270–272 Fraser N (1995) From redistribution to recognition? Dilemmas of justice in a ‘post-socialist’ age. New Left Rev I/212, July–August 1995 Fraser N (2009) Scales of justice: reimagining political space in a globalizing world. Columbia University Press, New York Galloway JN, Townsend AR, Erisman JW et al (2008) Transformation of the nitrogen cycle: recent trends, questions, and potential solutions. Science 320:889–892 Griggs D, Stafford-Smith M, Gaffney O, Rockström J, Öhman MC, Shyamsundar P, Steffen W, Glaser G, Kanie N, Noble I (2013) Sustainable development goals for people and planet. Nature 495(7441):305–307 Griggs D, Stafford-Smith M, Rockström J, Öhman MC, Gaffney O, Glaser G, Kanie N, Noble I, Steffen W, Shyamsundar P (2014) An integrated framework for sustainable development goals. Ecol Soc 19(4):49 Hajer M, Nilsson M, Raworth K, Bakker P, Berkhout F, de Boer Y, Rockström J, Ludwig K, Kok M (2015) Beyond cockpit-ism: four insights to enhance the transformative potential of the sustainable development goals. Sustainability 7(2):1651–1660 Hjorth P, Bagheri A (2006) Navigating towards sustainable development: a system dynamics approach. Futures 38(1):74–92 Hönisch B, Ridgwell A, Schmidt DN, Thomas E, Gibbs SJ, Sluijs A, Zeebe R et al (2012) The geological record of ocean acidification. Science 335(6072):1058–1063 IGBP (2015) Earth system definitions. http://www.igbp.net/globalchange/earthsystemdefinitions. 4.d8b4c3c12bf3be638a80001040.html

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Kubiszewski I, Costanza R, Franco C, Lawn P, Talberth J, Jackson T, Aylmer C (2013) Beyond GDP: Measuring and achieving global genuine progress. Ecol Econ 93:57–68 Leach M, Reyers B, Bai X, Brondizio ES, Cook C, Díaz S, Espindola G, Scobie M, Stafford-Smith M, Subramanian SM (2018) Equity and sustainability in the Anthropocene: a social–ecological systems perspective on their intertwined futures. Glob Sustain 1 Lim M, Allan A (2016) The use of scenarios in legal education to develop futures thinking and sustainability competencies. Law Teach 50(3):321–340 Lim M, Lynch AJ, Fernández-Llamazares Á, Balint L, Basher Z, Chan I, Jaureguiberry P et al (2017) Early-career experts essential for planetary sustainability. Curr Opin Environ Sustain 29:151–157 Malm A, Hornborg A (2014) The geology of mankind? A critique of the anthropocene narrative. Anthr Rev 1(1):62–69 Pereira L, Bennett E, Biggs R, Peterson G, McPhearson T, Norström A, Olsson P, Preiser R, Raudsepp-Hearne C, Vervoort J (2018) Seeds of the future in the present: exploring pathways for navigating towards “Good” Anthropocenes. In: Elmqvist T, Bai X, Frantzeskaki N, Griffith C, Maddox D, McPhearson T, Parnell S, Romero-Lankao P, Simone D, Watkins M (eds) Urban planet: knowledge towards sustainable cities. Cambridge University Press, Cambridge, pp 327–350 Pickett KE, Wilkinson RG (2015) Income inequality and health: a causal review. Soc Sci Med 128:316–326 Purdey S (2018) ‘Masters of our fate?’ The Metanarrative Project, 21 October 2018. https:// metanarrative.ca/anthropocene/masters-of-our-fate/. Accessed 1 Nov 2018 Raworth K (2012) A safe and just space for humanity: can we live within the doughnut. Oxfam Policy Pract: Clim Chang Resil 8(1):1–26 Robert C, Conway G (1992). Sustainable rural livelihoods: practical concepts for the 21st century. Institute of Development Studies, UK Rockström J et al (2009) A safe operating space for humanity. Nature 461:472–475. https://doi.org/ 10.1038/461472a; pmid: 19779433 Satterthwaite D (2009) The implications of population growth and urbanization for climate change. Environ Urban 21:545–567 Sen A (1999) Development as freedom. Oxford University Press, Oxford, UK Seto KC (2010) The new geography of contemporary urbanization and the environment. Annu Rev Environ Resour 35:167–194 Steffen W, Stafford Smith M (2013) Planetary boundaries, equity and global sustainability: why wealthy countries could benefit from more equity. Curr Opin Environ Sustain 5(3–4):403–408 Steffen W, Crutzen PJ, McNeill JR (2007) The anthropocene: are humans now overwhelming the great forces of nature. AMBIO: J Hum Environ 36:614–621. Steffen W, Broadgate W, Deutsch L, Gaffney O, Ludwig C (2015a) The trajectory of the Anthropocene: the great acceleration. Anthr Rev 2:81–98 Steffen W et al (2015b) Planetary boundaries: guiding human development on a changing planet. Science 347 Waters CN et al (2016) The Anthropocene is functionally and stratigraphically distinct from the Holocene. Science 351(6269):137 Wilkinson RG, Pickett KE (2009) Income inequality and social dysfunction. Annu Rev Sociol 35:493–511 Zalasiewicz J, Crutzen P, Steffen W (2012) The Anthropocene. In: Gradstein FM, Ogg JG, Schmitz M et al (eds) A geological time scale 2012. Elsevier, Amsterdam, pp 1033–1040

Part I

Re-defining Human-Environment Relationships

Chapter 2

Rights of Nature in the Anthropocene: Towards the Democratization of Environmental Law? María Valeria Berros

Abstract This chapter focuses on the processes of recognition of the Rights of Nature that have taken place in recent years, emphasizing the Latin American case. It is argued that this recognition can enrich socio-legal and ethical debates and thus enhance the defence of the natural world. The chapter examines the extent to which the rights of nature are recognised in some Latin American countries and the degree to which these ideas have circulated into the international regulatory space. It also argues that the Anthropocene presents a new opportunity for real and integrative collaboration among natural and social sciences and the humanities as well as the different types of knowledge and worldviews existing in our world, especially those of Indigenous Peoples. Finally, it argues that it is possible to consider a slow process of democratization of environmental law that implies several challenges for sociolegal research. Keywords Rights of nature · Environmental law · Interdisciplinary · Latin America The recognition of nature as a subject of rights is a recent strategy for nature protection, which has been pursued in some regions in the world. In the case of Latin America, these discussions occur in the context of larger alternatives to global capitalism that have emerged across the continent and in particular in the Andean region. The rights of nature approach has started to cross borders with several countries and 1 cities now initiating local rules or projects based on a bio or eco-centric philosophy. From small or larger towns around different countries to a European Union

1 The United Nations initiative called “Harmony with Nature” provides a compilation of the various

laws, declarations, and judicial decisions around the world where this perspective is gaining pace. Available in: http://harmonywithnatureun.org/rightsOfNature/. M. V. Berros (B) National University of Littoral - National Council of Scientific and Technical Research, Santa Fe City, Argentina e-mail: [email protected] © Springer Nature Singapore Pte Ltd. 2019 M. Lim (ed.), Charting Environmental Law Futures in the Anthropocene, https://doi.org/10.1007/978-981-13-9065-4_2

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Directive proposal2 or a Universal Declaration of the Rights of Nature project,3 this idea is gaining pace in heterogeneous regulatory spaces as well as in several judicial decisions. It is difficult to predict the success of nature protection within this paradigm. Some important questions arise, however, in relation to this emergent process: is the growing recognition of the rights of nature relevant to the democratisation of environmental law? This question, among others, is particularly important at the onset of the Anthropocene. Recognition of the rights of nature demonstrates that a variety of worldviews are now being incorporated into the legal field renewing challenges for socio-legal research, policy makers, citizens and social organizations when many societies are hoping to avoid the sixth mass extinction. This chapter focuses on the Latin American experience. Its starting point is that Latin American approaches to the incorporation of the rights of nature can enrich socio-legal, ethical, academic debates and the further development of environmental law. The chapter also advances arguments that are more appropriate for the defence of the natural world while identifying agendas and challenges of undeniable relevance. This chapter also provides the occasion to relate these processes to current discussions surrounding the Anthropocene while presenting a new opportunity for real and integrative collaboration among natural and social sciences and the humanities (Brondizio et al. 2016). This contribution also encourages consideration of how scientific and academic spaces could be in permanent dialogue with the range of knowledge systems and worldviews existing in our world, taking especially into account the value of the wisdom of Indigenous Peoples.4 This chapter therefore examines the potential of the emergence of the rights of nature not only as a protection mechanism that can advance environmental protection; but also as a sample of the heterogeneity of views and proposals on contemporary environmental law. To do this, the chapter first examines the recognition of the rights of nature in Latin America at the local and national level and the circulation of these ideas into the international regulatory space. Then, some of the main characteristics of the recognition of the rights of nature in these cases are presented. Finally, it is argued that it is possible to consider a slow process of democratization of environmental law that implies several challenges for socio-legal research in the Anthropocene.

2A

draft of this proposal, supported by a number of organizations and citizens from different European countries that are trying to achieve to an European Citizens’ Initiative is available in: https://natures-rights.org/ECI-DraftDirective-Draft.pdf. 3 Draft available in: http://www.rightsofmotherearth.com/. 4 Noam Chomsky, for example, has recently afirmmed that “the Indigenous people are saving the planet from an environmental disaster” (see http://ecoosfera.com/2017/03/noamchomsky-activismo-ambiental-indigena-latinoamericano-video/). In a similar sense, UN Special Rapporteur Victoria Tauli-Corpuz argues that Indigeneous people are the best guardians of world’s biodiversity in the International Day of the World’s Indigenous Peoples conmemoration (see https://www.theguardian.com/environment/andes-to-the-amazon/2017/aug/09/ indigenous-peoples-are-the-best-guardians-of-the-worlds-biodiversity).

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2.1 Nature Has Rights: From Some Latin American Legal Systems to Other Regulatory Spaces Over the last few decades, many have argued that it is necessary to change the legal status of nature, biological diversity and non-human animals. These discussions trace back to thinkers such as Aristotle or, closer in time, Immanuel Kant but have gained prominence towards the later part of the 20th century, in which the contributions of thinkers such as Aldo Leopold (1949), Naess (1973), Singer (1977), Taylor (1989), and Regan (2004), among others, gained prominence. In the legal field the first articles from Stone (1972) in the United States as well as the ones from Hermitte (1988) in France and Stutzin (1984) in Chile have begun to generate a field of discussion that is expanding in many law schools around the world. Such discussion occurs as legal recognition of nature’s rights and judicial decisions continue to proliferate.

2.1.1 The Rights of Nature in the International Law Arena The recognition of the rights of nature has started to proliferate in international legal instruments. For example, “The Future We Want”, the outcome document of the 2012 United Nations Conference on Sustainable Development known as “Rio+20”, establishes in paragraph 39: We recognize that the planet Earth and its ecosystems are our home and that Mother Earth is a common expression in a number of countries and regions and we note that some countries recognize the rights of nature in the context of the promotion of sustainable development. We are convinced that in order to achieve a just balance among the economic, social and environment needs of present and future generations, it is necessary to promote harmony with nature (UN 2012).

‘The Future We Want’ reflects a discussion that is emerging not only at the international level but also in several countries and cities. In some constitutional reforms and new legal regulations, nature is explicitly recognized as a legal entity. This reinvigorates conceptualisation of legal entities other than humans being as subject of rights—as previously seen in corporations. Another important example of the circulation of this perspective to the international law arena is United Nations General Assembly Resolution No. 64/196 that in 2009 declared April 22 as International Mother Earth Day. It was the state of Bolivia that proposed the incorporation of this topic into the UN’s agenda. Since then, a group of United Nations General Assembly Resolutions under the denomination “Harmony with nature”5 and several reports from the General Secretary that share this title have been published every year. The abovementioned project for a European Union Directive about rights of nature could be added to this proliferation 5 United

Nations General Assembly Resolutions: No. 64/196 of 2009, No. 65/164 of 2010, No. 66/204 of 2011, No. 67/214 of 2012, No. 68/216 of 2013, No. 69/224 of 2014, No. 70/208 of 2015, No. 71/232 of 2016, No. 72/223 of 2017, No. 73/235 of 2018.

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of legal proposals. In parallel, various declarations and projects from international organizations, with the objective to arrive to an international document about rights of nature, are emerging as for example the Marseille Declaration of 2012 or the proposal for a Universal Declaration of River Rights (Earth Law Centre 2019). The circulation of these ideas from Latin American countries implies a number of research topics especially related with the globalization of legal processes (Haidar and Berros 2015). In this case emerging perspectives, processes and also social movements especially from Ecuador and Bolivia, are gaining visibility in the field of the global regulation of the environment. In these countries, “Buen vivir, Vivir Bien”—translated in English as “a good way of living” is being presented as an alternative to capitalism. The concept which includes recognition of the rights of nature travels from South America to other regulatory spaces in dialogue with the idea of “harmony with nature”, a concept that has become a field of dispute to respond to ecological problem reviewing the link between nature and society. From a sociolegal approach some discussions are required: Is the essence of the concept lost in this circulation process? Which are the characteristics that rights of nature from Andean communities, translated into the legal field, are present or overshadowed in the international arena?

2.1.2 Latin America—Leading the Way for Nature’s Rights In Latin America, the first examples of nature as a subject of rights include Pachamama in the Constitution of Ecuador and in the constitutional Preamble of the Plurinational State of Bolivia in Bolivia; Madre Tierra in the Mother Earth Rights Act (2010); and the Framework Act on Mother Earth and Holistic Development to Live Well (2012) in Bolivia. In both countries, the Indigenous perspectives of nature have assumed an important role. These legal developments extended conceptualisation of nature beyond either an object to exploit or to protect.6 The Seventh Chapter of Ecuador´s Constitution, approved in 2008, is titled Rights of Nature. There, Pachamama is recognized as a subject of rights. Pachamama is the quichua and aimara expression for Mother Earth. Quichua is the language of different Indigenous populations in the Andean region of South America and aimara is the language of aimaras or aimarás, an Indigenous group that represents an important part of Bolivia’s population and it is also spoken in the north of Argentina, in Chile and in the south of Perú.

6 In

relation to the different perspectives on Descola and culture, Philippe Descola provides a rich discussion which argues for a need to move beyond the nature/culture dichotomy and to identify and turn visible the present diversity in our world. Descola, P. Beyond nature and culture, Chicago: University of Chicago Press, 2013.

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The right to an integral respect for the existence of nature and for the maintenance and regeneration of its life cycles, structure, functions, evolutionary processes and the right to be restored are part of this constitutional text: Article 71: Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes. All persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature. To enforce and interpret these rights, the principles set forth in the Constitution shall be observed, as appropriate. The State shall give incentives to natural persons and legal entities and to communities to protect nature and to promote respect for all the elements comprising an ecosystem; Article 72: Nature has the right to be restored. This restoration shall be apart from the obligation of the State and natural persons or legal entities to compensate individuals and communities that depend on affected natural systems. In those cases of severe or permanent environmental impact, including those caused by the exploitation of non-renewable natural resources, the State shall establish the most effective mechanisms to achieve the restoration and shall adopt adequate measures to eliminate or mitigate harmful environmental consequences.7

In Bolivia, this recognition is visible in the Constitutional Preamble as one of the forces to found Bolivia anew, and in the abovementioned Mother Earth Rights Act in 2010 and the Framework Act on Mother Earth and Holistic Development for Living Well in 2012. These Acts contain an important list of rights including rights to life; diversity of life; water; clean air; maintenance of the interrelation, interdependence, complementarity and functionality of the components of the Mother Earth; restoration; and be free from pollution.8 Article 3 of the Mother Earth Rights Act (2010) presents the concept of Mother Earth as A dynamic living system made up of an indivisible community of all interrelated, interdependent and complementary life systems and living beings, which share a common destiny. Mother Earth is considered sacred from the worldviews of communities and peasant Indigenous peoples.9

Scientists, activists and politicians have observed advances and setbacks in the implementation of these rights around the world. Some of the experiences that failed have been highly visible, even international. In that sense, a remarkable moment in Ecuador was, for example, the case of Yasuni ITT, a creative and innovative idea for how to prevent oil reserves in the Ecuadorian Amazon from being exploited. The proposal involved the use of a classic legal tool: the trust fund. The international community was called on to contribute an amount equivalent to fifty per cent of the earnings that Ecuador would lose by not developing the oil reserve. This was based on the co-responsibility principle, the idea that ecological problems affect everyone in the world. On August 26 2013, however, Ecuador decided to end the project because the contributions had been very low and were declining. 7 Translation

from Constitution Project. 7, Mother Earth Rights Act, Bolivia, 2010. 9 Article 3, Mother Earth Rights Act, Bolivia, 2010. 8 Article

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After those initial proposals from Ecuador and Bolivia, several cities and provinces in Latin America have also started to recognize the rights of nature. This is the case of Guerrero State and Mexico City in Mexico. In both instances, legal recognition of the human right to a healthy environment coexists with this explicit enlargement of nature rights.10 More recently, in Argentina, the City of Santa Fe included the rights of nature in a local regulation that prohibits the use of glyphosate—a broadspectrum herbicide. Since August 2018, this prohibition is not only related to human health, but also to the protection of nature rights. In this country, a national law project has been discussed in the Senate since 2015. Many meetings have taken place between senators and different specialists on the topic.11 The cities of Brazil Paudalho (2018) and Bonito (2017), both in the State of Pernambuco in Brazil, have already recognized the rights of nature. There are several other Brazilian local movements and local regulation projects supporting the idea. The success of these movements will surely be more complex due to the current political reality of rights regression that this country is experiencing. The extent of this regression even places Indigenous communities that live in the territory, especially in the Amazon, at risk. Recent jurisprudence from the Colombian Supreme Court and Constitutional Court are further examples of the growing influence of a variety of worldviews when conceptualising nature. There is a group of decisions on rivers, animals and deforestation and climate change that, despite not having an explicit recognition of nature as a subject of rights in any regulation, have made progress in a reinterpretation of current law that moves away from the anthropocentric perspective. The Atrato River was considered in a 2016 decision as a subject of rights that has to be represented in the sanitation plan,12 habeas corpus was granted in favour of the bear “Chucho”,13 the Amazon rainforest was recognized as a subject of rights that have to be considered in the intergenerational agreement to stop deforestation demanded by the Court to different Colombian institutions.14 At the regional level, the Inter-American Court on Human Rights in its Advisory Opinion OC-23/17 of November 15, 2017 titled “The Environment and Human Rights (State obligations in relation to the environment in the context of the protection and guarantee of the rights to life and to personal integrity—interpretation and

10 The new Constitution of Mexico City, entered into force on September 2018, adopted the rights of nature in its Article 13 and the 2014 Constitution of the State of Guerrero, amended on 30 June 2014, recognized these rigths in its article 2. 11 To follow the status of the project you can check the website of the national senate: http://www. senado.gov.ar/parlamentario/parlamentaria/365901/downloadPdf. 12 Centro de Estudios para la Justicia Social “Tierra Digna” en representación del Consejo Comunitario Mayor de la Organización Popular Campesina del Alto Atrato (Cocomopoca), el Consejo Comunitario Mayor de la Asociación Campesina Integral del Atrato (Cocomacia), la Asociaci´on de Consejos Comunitarios del Bajo Atrato (Asocoba), el Foro Inter-étnico Solidaridad Chocó (FISCH) y otros, contra la Presidencia de la República, el Ministerio de Ambiente y Desarrollo Sostenible y otros s/ acción de tutela, Constitutional Court of Colombia, 10 November 2016. 13 STC 544385/2017, Sala de Casación Civil, Supreme Court of Colombia. 14 STC 4360/2018, Sala de Casación Civil, Supreme Court of Colombia.

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scope of Articles 4(1) and 5(1) of the American Convention on Human Rights)”15 noted a tendency to recognize the legal status and, therefore, rights of nature not only in judicial sentences but even in constitutional systems. The Court explicitly refers to the constitutions of Bolivia and Ecuador and the jurisprudence of Colombia, Ecuador and, beyond Latin America, India as some of the examples in which this recognition process has gained ground.

2.1.3 Key Characteristics of Nature’s Rights in Latin America In this context and in the beginning of the present century, it was in Latin America where the rights of nature were first recognised and have hence developed particular characteristics. The first characteristic is to open the dialogue between the right to a healthy environment and the rights which nature owns. The second is the relation between this recognition and the proposals presented as alternatives to capitalism. The third is the link between this recognition of rights and the plural spaces for knowledge production. The first characteristic makes visible the legal translation of the heterogeneous worldviews that shape how we deal with ecological issues. Here, the human right to a healthy environment occurs along with the view that nature, or more precisely Mother Earth, Pachamama, has rights. This demonstrates the heterogeneity of visions of our planet that are beyond those of what we usually see in the western world. It thus challenges the modern dichotomy of nature and culture. A dialogue across different worldviews is necessary due to their translation in these legal systems that imply a series of challenges: How would humans decide in cases in which the rights of nature are affected? Who are the representative of these rights and how might these rights be enforced? The second characteristic, the alternative to capitalism, is connected to the articulation of recognition of rights of nature and the proposal for the construction of an alternative way of living: the sumak kawsay or suma qamaña—in Spanish: Buen Vivir or Vivir Bien. The first expression is in quichua, the second one is in aimara. Both are Indigenous people’s languages in those regions and this is an important mark of the incorporation into their legal framework. It demonstrates the important place that Indigenous peoples have had in these legal proposals in articulation with other important movements such as environmentalism, feminism, and socialism. The “good way of living” is presented as an alternative where the concepts of development and progress are discussed. Another important characteristic is the need for plural spaces of knowledge production. In these new Constitutions and regulations there is an important revaluation of ancestral and popular knowledge. This implies, necessarily, a vision of knowledge where diversity is central. In the case of Ecuador, for example, the Constitution 15 The Inter-American Court of Human Rights complete document available in: http://www.corteidh.

or.cr/index.php/en/component/content/article/16-juris/398-advisory-opinions.

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established the National System of Science, Technology, Innovation and Ancestral Wisdom. One of its objectives is to restore, strengthen and upgrade ancestral wisdom. Access to the diversity of knowledge is enshrined as a constitutional right: Persons have the right to enjoy the benefits and applications of scientific progress and ancestral wisdom.16

In Bolivia, there is a similar situation. In the new Constitution there is a preoccupation with the diversity of worldviews, practices and knowledge. In a similar sense, there are some references to this topic in the above-mentioned Framework Act on Mother Earth and Holistic Development for Live Well in 2012: The Plurinational State of Bolivia promotes the complementarities among wisdom and traditional knowledge and the sciences.17

2.1.4 Implementing the Rights of Nature in the Anthropocene The legal developments discussed above imply an important transformation of the legal status of nature, which was originally considered as an object to exploit. The idea of exploitation of nature and its elements has slowly transformed into another idea: the protection of our environment for present and future generations. Before the enactment of these constitutional provisions and national rules, only physical or legal persons were considered a subject of rights. The physical persons are the holders of the right to a healthy environment but currently in some legal systems that right coexists with the recognition of rights to nature. While there are many challenges in implementing the rights of nature, despite growing legal recognition, it remains an innovative and important proposal. The emergence of nature as a subject of rights also suggests a growing democratization of environmental law precisely by the characteristics that we mentioned in the previous section. The constitutional recognition of our right to a healthy environment coexists now with another type of recognition that is already have been studied as a sort of “juridical animism” (Hermitte 2017) or as an example of legal pluralism. These perspectives highlight how worldviews that go beyond the nature and culture dichotomy are being translated into the legal field. This implies, for example, that we cannot only discuss a green economy or sustainable development. We need to also consider alternatives to capitalism that try to interrogate the modern notions of progress and development. We cannot continue to ignore that in many worldviews nature is indeed a person. Using the language of rights facilitates recognition of such rights. We can no longer ignore the plurality of knowledge on our planet, especially when we are going through a new stage of mass extinction due to human behaviour. Thereby the Anthropocene provides the opportunity to renew true collaboration among disciplines to analyse this process of legal recognition and its challenges in 16 Article 25, Constitution of the Republic of Ecuador, 2008. Translation from Constitution Project. 17 Article

4.17, Framework Act on Mother Earth and Holistic Development for Live Well, 2012.

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terms of participatory decision making on environmental issues, institutional designs, policy implementation and judicial decisions. Today it is not possible to think about the recognition of rights of nature as purely the purview of legal academics. The central characteristics considered above relating to incorporation of the rights of nature in Latin America, allows reflection on the need to engage in inter- and trans-disciplinary approaches. It also facilitates discussion beyond the scientific and academic fields to the rich and important wisdoms present outside formal academic institutions.

2.2 An Emergent Agenda for Socio-Legal Environmental Law Research in the Anthropocene The issues discussed above present many opportunities and challenges for advancing an environmental law research agenda in the Anthropocene (Bai et al. 2016). Human activities have greatly transformed our planet in a myriad of ways: climate change, ocean acidification, great loss of biological diversity, plastic pollution in oceans and rivers, uncontrolled growth of useless consumption, among other problems that show our huge footprint. Therefore, in the epoch of humans it is important to draw us back to a fundamental rethink of our relationship with nature including the consideration of a range of worldviews particularly those that place the Earth at the centre. This shift in thinking has led to some legal recognition of an “equality of arms” between the human and the non-human (Hermitte 2011). Human beings have rights. Mother Earth, Pachamama also has rights: the right to restoration, to life, to the integral respect of their existence, to life diversity, to be free from pollution, to water, to clean air. In this context, environmental law research questions should be renewed from a socio-legal perspective where an important dialogue between law and other fields of knowledge becomes central. This is important not only to facilitate the holistic study of these processes, but also to identify new research questions and new possibilities to address to the ecological problem and the future of our world. Key questions to be interrogated include: – How have arguments based on the rights of nature been used in judicial decisions? – What new institutions need to be built to realise recognition of the rights of nature? – How have these ideas started to cross local frontiers and to circulate to the international environmental law arena? – Is there a risk of losing the original sense of right of nature proposals coming from the Andean region? – Which contributions from the legal sphere have the greatest potential to inform Anthropocene debates taking place across different disciplines? A first relevant contribution from a socio-legal research perspective could be to identify how this recognition of the rights of nature implies the opportunity to build better arguments than those already constructed in environmental law. In other words, what are the chances that legal frameworks that enable the rights of nature

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could be realised? A second important topic would consider the institutional designs necessary to implement the rights of nature. This raises further questions such as: Which kind of institutional innovations are necessary? In which ways are institutions starting to be designed to incorporate such innovation? What are the different types of knowledge necessary to create these institutions in a coherent way? Which failed propositions or projects inspired in the rights or nature recognition could be study with the idea to rescue the experiences? And, finally, it is necessary to study the process of circulation of these ideas to other regions and to the international space. This is especially relevant due to the risk of loss the original sense of these proposals. The risk is that the recognition of the rights of Mother Earth could be turned into a slogan, without the central, articulate critique of capitalism and the recovery of other worldviews and spaces of knowledge production. In summary, Latin America experiences provide important perspectives for developing environmental law in such a way that it is anchored in novel worldviews and mechanisms. This allows us to rethink environmental law so as to draw upon the many worldviews and innovative contributions that exist across the different regions of the world. In other words, they allow us explore the possibility of democratizing concepts, tools, principles and legal theories of environmental law. The answer to the challenges of the Anthropocene can never be created without an engaged dialogue across disciplines, a dialogue that will surely contribute to generating a more democratic environmental law that contains the existing plurality of contributions to ecological issues.

References Bai X, Van Der Leeuw S, O’Brien K, Berkhout F, Biermann F, Brondizio ES, Cudennec C et al (2016) Plausible and desirable futures in the Anthropocene: a new research agenda. Glob Environ Chang 39:351–362 Brondizio ES, O’Brien K, Bai X, Biermann F, Steffen W, Berkhout F, Cudennec C et al (2016) Re-conceptualizing the Anthropocene: a call for collaboration.Glob Environ Chang 39:318–327 Descola P (2013) Beyond nature and culture. University of Chicago Press, Chicago Earth Law Centre (2019) Universal declaration on river rights. https://www.earthlawcenter.org/ river-rights Francione G (2007) Animals, property, and the law. Temple University Press, Philadelphia Haidar V, Berros MV (2015) Entre el sumak kawsay y la “vida en armonía con la naturaleza”: disputas en la circulación y traducción de perspectivas respecto de la regulación de la cuestión ecológica en el espacio global. Revista Theomai Estudios Críticos sobre Sociedad y Desarrollo 32:128–150 Hermitte MA (1988) Le statut de la diversité biologique. In: Bourgois C (ed) L’homme la nature et le droit, Droit et société. Pratiques de recherche, questions théoriques et problèmes épistémologiques sur le droit et la société, p 55 Hermitte MA (2011) La nature, sujet de droit? Annales Histoire sciences sociales EHESS, pp 173–212 Hermitte MA (2017) Quels rapport entre artificialisation de la nature et droit(s) du vivant? Paper presented at the College de France, Paris, 20 Oct 2017

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Leopold A (1949) A sand county almanac, and sketches here and there. Oxford University Press, New York Naess A (1973) The shallow and the deep, long-range ecology movement: a summary. Inquiry 95–100 Regan T (2004) The case for animal rights. University of California Press, California Singer P (1977) Animal liberation. A new ethics for our treatment of animals. HarperCollins, New York Singer P (2010) Libération animal ou droits des animaux? In: Afeissa HS, Jeangène Vilmer JB (Comp.) (eds) Philosophie animale. Différence, responsabilité el communauté. Vrin, Paris Stone C (1972) Should trees have standing? Toward legal rights for natural objects. South Calif Law Rev 45–450 Stutzin G (1984) Un imperativo écologico: reconocer los derechos de la naturaleza in: Ambiente y Desarrollo 97–114 Taylor P (1989) Respect for nature. A theory of environmental ethics. Princeton University Press, Princeton United Nations (2012) The future we want A/RES/66/288, 27 July 2012

Chapter 3

Moving Towards “Ecological Civilization” in the Anthropocene: The Future of Environmental Law in China Di Zhou

Abstract The widespread environmental degradation caused by human activities has resulted in the advent of a new era: the Anthropocene. In responding to this dramatic change, the system of rules regulating human behaviors should be reshaped. In the process of self-reflection on its ecological crisis, China has developed the idea of a transition to an “ecological civilization”. Therefore, environmental law in China will play a crucial role in this process which requires a thorough re-examination and transformation of existing law and institutions. This chapter is comprised of three sections. First, the strategy of “ecological civilization” initiated by the Chinese government and its relevance to the Anthropocene are discussed. The concept of the Anthropocene and ecological civilization both require adjustment in humans’ attitudes towards nature and human interactions with nature. Next, the chapter examines the three main challenges to the transformations of environmental law in China in moving towards “ecological civilization”. The interactions between the rules of supra-national, national and local levels constitutes the first challenge. It is argued that efforts should be made both in ways of “top-down” and “bottom-up”. The second challenge is the coordination of the administrative and the party accountability mechanism in terms of implementation. Thirdly, fragmented rules on the legal standing for environmental litigation require systematization in order to enhance the access to environmental justice. The concluding section broadens the discussion to encourage legal scholars to adopt inter-disciplinary and trans-disciplinary methods to reposition the role of environmental law in China in a comprehensive and integrated way. Keywords Ecological civilization · China · Glocalization · Accountability mechanism · Legal standing

D. Zhou (B) School of Marxism, Wuhan University, Wuhan, People’s Republic of China e-mail: [email protected] © Springer Nature Singapore Pte Ltd. 2019 M. Lim (ed.), Charting Environmental Law Futures in the Anthropocene, https://doi.org/10.1007/978-981-13-9065-4_3

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3.1 Anthropocene: A Concept for Self-reflection “The Anthropocene” was proposed in 2000 to convey the idea of the epoch of human beings where global environmental changes have been caused by factors under human control (Crutzen and Stoermer 2000; Oldfield et al. 2014). Since its introduction, the term “Anthropocene” has moved many scientists from various backgrounds and disciplines from natural science to social sciences and humanities to focus on the challenges that this new epoch brings (Oldfield et al. 2014). There exists the ongoing controversy particularly among Earth system scientists and geologists on the existence and the starting point of the Anthropocene (Hamilton 2015; Lewis and Maslin 2015). However, from a perspective of social science, we cannot delay action until all scientific facts are on the table. Further, general consensus has been reached on the statement that the Anthropocene is a process through which human activities constitute a major and decisive force in generating extraordinary planetary changes even in the context of natural uncertainty and variability (Oldfield et al. 2014). The interaction of nature and human society is incontrovertible, based on the dramatic transformations on the Earth system made by human activities. (Malm and Hornborg 2014). Climate change is a key example of this. Now that the idea of the Anthropocene has grown from a scientific concept to a set of compelling narratives it has inspired a sense of reflection (Lidskog and Waterton 2016). The basic logic of the industrial revolution has dominated the world for hundreds of years, with exponential expansion in economic and technical development. This has coincided with unsustainable exploitation of natural and environmental resources. Reflection on this development model thus requires a transition in ways of thinking as well as moving beyond business as usual. The question then becomes how the system of rules regulating human behaviors should respond to the fact that humanity has an ascending power over nature. This question is especially pertinent when confronted with some of the challenges for humanity as a whole. When faced with environmental pollution, energy shortage and natural resource depletion, “there is the need to re-conceptualize not only the relations between natural and social sciences but also history, modernity and the very idea of the human” (Malm and Hornborg 2014). In this process of self-reflection, China, as the most populated and one of the most diverse countries on the planet, has developed the idea of a transition to an “ecological civilization”. Environmental law will undoubtedly play a crucial role in this transition. Therefore, environmental law in China, from the making of rules to their implementation throughout society, will require a thorough re-examination and transformation. The chapter is comprised of three sections. First, the strategy of “ecological civilization” initiated by the Chinese government and its relevance to the Anthropocene are discussed. Next, the chapter examines the main challenges to the transformations of environmental law in China in moving towards “ecological civilization”.

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The concluding section broadens the discussion to encourage legal scholars to adopt inter-disciplinary and trans-disciplinary methods to reposition the role of environmental law in China in a comprehensive and integrated way.

3.2 The Proposition of “Ecological Civilization” in the Anthropocene China has been moving towards an era of “Ecological civilization”. In 1984, former Soviet Union environment experts first proposed the term “Ecological Culture” (Lipitsky 1984). Translated into Chinese in 1985 as 生态文明 (sh¯engtài wénmíng), or “ecological civilization”, the term was used extensively in Chinese and was linked by scholars in the evolution of human civilizations as the next stage of “industrial civilization” (Ye 1984; Wang 2001). However, neither the term nor the concept saw widespread use until 2007 when it became an explicit goal of the Communist Party of China (CPC) (Jiang 2008). Since then, Chinese political leaders have continuously highlighted the importance of developing “ecological civilization”. The report to the 18th CPC National Congress in the year 2012 adopted “ecological civilization” as China’s national development strategy. The term was defined as the need to respect, accommodate and conserve nature and to prioritise protection of ecological integrity. The 18th Congress resolved to incorporate ecological civilization into all aspects and processes for advancing economic, political, cultural and social progress (Report to the 18th National Congress of CPC 2012). In the report to the 19th CPC National Congress in 2017, President Xi Jinping proposed an ambitious blueprint of “ecological civilization” with the goal that by 2035, there will be a fundamental improvement in the quality of the environment (Report to the 19th National Congress of CPC 2017). According to Chinese traditional Daoists, naturalness is considered as a value of priority in Daoism, and the basic philosophy of being in nature involves living in accordance with the ways of nature (Lin 1948). Although informed by the existing international law principle of “sustainable development”, “ecological civilization” differs from it by involving Chinese philosophy to inspire a fundamental rethink of the order between humanity and nature. The aim to reshape the relationship between humanity and nature as required by “ecological civilization” is timely given the onset of the Anthropocene. The concept and the geological epoch both require thorough adjustment in humans’ attitudes towards nature and human interactions with nature. China is experiencing a period characterized by a sharp contradiction between economic growth and environmental protection, after rapid development which has prioritised economic growth for over three decades. To date, it remains a pending question for China, as the world’s second largest economy, on the balance of pursuing economic growth and preserving the environment and natural resources.

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The notion of “ecological civilization” incorporates ways of thinking from the science of ecology, the notions of liberty and democracy as well as histories of the rise and fall of civilizations (Gare 2017). It involves a fundamental change in the ethics, politics and techno-science of the whole society. Therefore, in the promotion of “ecological civilization”, it has been repeatedly emphasized that “only the best institutional arrangements and the strictest law can provide a reliable guarantee for China’s ecological civilization” (Report to the 19th National Congress of CPC 2017). In March 2018, the Ministry of Ecology and Environment was established, replacing the former Ministry of Environmental Protection. The new ministry integrates the separated responsibilities of environmental pollution prevention and ecological protection under the requirements of protecting ecological integrity. “Ecological civilization” has been written into China’s newly revised Constitution. Legislation at national and sub-national levels began in 2013. In 2014, the development of “ecological civilization” was added into Article 1 of the amended Environmental Protection Act. Following this amendment, the State Council had issued a series of specific implementing rules covering the issues of environmental protection inspection; ecological monitoring networks and data management; government accountability for damage to ecological integrity; compensation system for ecological damage, etc. In addition, since the amendment of the civil procedural law in 2015, NGOs which meet specific standards have legal standing to bring environmental public interest litigation. With the establishment of over 1000 environmental tribunals and divisions at all levels in China, the access to justice in this field has been remarkably reinforced. It is notable that some changes have already been made to reshape environmental law in China in terms of both legislation and implementation. This is just the beginning. A long and tortuous course still lies ahead to re-conceptualise environmental law in China to achieve “ecological civilization” in the Anthropocene. The discussion that follows explore the key transformations that will be needed to achieve the goal of “ecological civilization” in the world’s most populous nation and the second largest economy. A conclusion will be made based on these discussions on what the scholars should focus on in order to contributing to this historical transition.

3.3 Re-conceptualizing the Environmental Law in China in Moving Towards “Ecological Civilization” In this section, three innovations will be identified in the process of re-conceptualizing environmental law in China. First, the making of environmental rules will experience a process of “glocalization” which is characterized as a substantial integration of international and local rules. Second, the administrative/Party accountability mechanism will serve as a basic guarantee in the implementation of the environmental rules. Last, in the perspective of environmental adjudication, the existing diversified legal standing group of environmental litigation will need to be systemized. With the

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overall legislative, administrative and judicial efforts, the environmental law will be systematically transformed in the way towards the goal of “ecological civilization” in China.

3.3.1 The Formation of Rules in a Process of “Glocalization” “‘Glocalization’ is a term in sociology used by Roland Robertson to combine the co-existing and interacting trends of globalization and localization. Accordingly, globalization indicates the process of homogenizing while localization presents the process of particularizing (Robertson 1995). Glocalization indicates that the growing importance of global levels is occurring together with the increasing salience of local levels (Encyclopedia Britannica 2013). “Rules Glocalization” as an application of the term “Glocalization” in the legal field captures the essence of connecting the global and local dimensions in the process of rules making in China. Absolute unification of the rules of different scales cannot lead to success, whilst rules taken at local scale, when collectively considered, may not necessarily lead to improved ecological integrity overall (Kim and Bosselmann 2015). As we begin to understand the complex and interdependent operation of nature at subnational, national, regional and global scales, it becomes evident that the existing political fragmentation of sovereign territorial states, governed by primary reference to national interests, must be replaced by a new form of governance (Taylor 2013). Traditionally, international and domestic law, particularly sub-national laws, have been seen to be two separate but potentially related spheres of law. The co-existence of global instruments and local norms thus requires a thorough examination on their relationship and interactions in the efforts to promote “ecological civilization” in China. In this global-local nexus, the ‘global’ refers to the universalizing tendency of rules to promote “ecological civilization” in China with the international laws and rules from other countries in the field of sustainable development, whilst the ‘local’ refers to the particularizing tendency of rules to promote “ecological civilization” in China deriving from the subnational levels, namely the levels of provinces and cities with sub-districts. As highlighted above, “ecological civilization” has been informed by the international law principle of “sustainable development” but reflects uniquely Chinese concerns. China has emphasized its increasing intention to be deeply involved in global sustainable development. Therefore, in the process of formulating rules to promote “ecological civilization”, international agreements and instruments, such as the Rio Declaration on Environment and Development, the Convention on Biological Diversity (CBD), and the Paris Agreement within the United Nations Framework Convention on Climate Change (UNFCCC), and the Global Pact for the Environment, have served and will continue to serve as indispensable references as the result of globalization. Meanwhile, rules originating from other jurisdictions can also have influence through legal transplantation. Together they constitute the global aspect of the rules which inform “ecological civilization” in China.

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On the other hand, a general decentralized trend can be discerned in the field of rule-making in China. Before 2015, only authorities at the provincial level and from 49 big cities designated by the State Council were authorized to develop local rules. In 2015, the amended Legislative Law authorized for the first time all cities with sub-districts to formulate local rules specifically in three areas: environmental protection, the protection of cultural relics, and urban and rural planning and governance. Since then, the cities with sub-districts have become an emerging power in local environmental legislation. They have developed over 600 local rules in the field of environmental protection during the past three years (Zhou 2018). These rules at the sub-national level constitute the local aspect of rules towards “ecological civilization” in China. In the striving towards “ecological civilization” in China, legal efforts should be made on the one hand, in a “top-down” manner by an overall design and strong implementation of the Constitutional rules integrating the idea of the “ecological civilization”. On the other hand, “bottom-up” approaches should be used to in combine the forces of civil societies and the general public. Therefore, a normative architecture mixing the approaches of top-down and bottom-up is essential for future environmental legislation in China if “ecological civilization” is to be achieved.

3.3.2 The Guarantee of Implementation via Administrative/Party Accountability Mechanism Accountability mechanisms are of crucial importance to guarantee the strong implementation of environmental rules in China. An effective and efficient accountability mechanism should be adapted to China’s current administrative system as well as the tradition of governance of the country. For example, in 2007, in responding to a cyanobacteria pollution incident in the Lake Taihu, the local government of Wuxi city began a river basin governance mechanism, within the jurisdiction of the river, to designate river chiefs from all levels of Party and government leaders to be responsible for the implementation of water management regulations. Only one year later, this emergency response water management system was found to obtain effective results, with a water quality compliance rate of 79 river sections in the jurisdiction being raised from 53.2 to 71.1% (Liu 2018). After Wuxi’s experience with the river chief mechanism, provinces and cities, including Zhejiang, Liaoning, Nanjing, Hefei, Tianjin and Qingdao, have also achieved satisfactory results from their trials (Zhu 2017). In 2017, the river chief mechanism was included in the revised Water Pollution Prevention Act for the first time. Accordingly, party and government leaders will be responsible for addressing water pollution, including resource protection, waterline management, pollution prevention and control, and ecological restoration. Officials who achieve their goals will be rewarded, while those who fail in their responsibilities will be punished with fines and loss promotion opportunities. As of July 2018, more

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than 300,000 river chiefs in a four-tier system, from provincial to township levels, have been appointed in the 31 provinces in China, according to the minister of water resources (China Daily 2018). This number means that the river chief system was established across the country half a year earlier than planned by the “Opinions on fully promoting the river chief mechanism,” released on 11 December 2016 by the General Office of the State Council and the CPC Central Committee, stipulating that the river chief system mechanism must be fully established by 2018. According to the “Opinions on fully promoting the river chief mechanism”, the basic practice of the river chief mechanism is as follows: there are four levels of river chiefs, which are provincial, urban, county and township, in descending order of power. For each province, the position of the principal river chief is undertaken by principal leaders of the provincial government or Party committee. The river chiefs are assigned to take charge of rivers in their jurisdiction. The performance of river chiefs, which depends mainly on the water quality in the jurisdiction, is an important criterion for the overall assessment of officials. The basic logic of the river chief mechanism is not new. Article 6 of the Environment Protection Act 2014 provides that local governments at all levels shall be responsible for the environmental quality within their respective administrative regions. However, due to the lack of specific measures of implementation and the political pressure on growth measured only in terms of GDP, the quality of environment has long been disregarded in the administrative assessment by officials in charge. The lack of a feasible administrative accountability mechanism has thus led to the weak implementation of environmental law among the various stakeholders including industries and the general public. Furthermore, the reason why the river chief mechanism has effective results lies in the ingenious method of using the Communist Party hierarchy as a lever to improve coordination between various government organs. Before, it was difficult to incorporate the criteria of environmental quality into the assessment system under the traditional way of viewing officials’ performance. It was also difficult to get officials of the same rank to cooperate on water pollution and water resource management. Now, by making a person who has the authority over the various officials and departments below him responsible to supervise and coordinate, various departments will be obliged to work and cooperate fully. With the expansion of legislative documents in the field of environmental protection and natural resources management, the problem on how to strengthen implementation of these increasingly well-developed rules remains a key issue for the future of environmental law in China. Without a robust supporting legal framework, ambitions for a transition to “ecological civilization” are utopian. The effective implementation of law should take into full account the economic, social and cultural background of the specific jurisdiction. In exploring the implementation mechanism of environmental laws in China, much more focus should be put on the government compared to industries or the individuals from the society. In seeking compliance by government officials, a strong and clear accountability mechanism under the

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supervision of superior authorities and in connection with the assessment of the officials’ performance is indispensable. In addition, public participation in terms of public information disclosure and access to justice should also be strengthened.

3.3.3 The Systematization of Legal Standing for Environmental Litigation Since the establishment of the first specialized environmental court at Qingzhen city of Guizhou Province in 2007, nearly 1000 specialized environmental courts, collegiate benches and circuit courts have been set up in China (White Paper on environment and natural resource adjudication 2016–2017). Enhanced access to justice might also means that the courts would be exposed to demanding social or political needs from the public (Stern 2014). Access to environmental justice in China has entered a new stage which includes the establishment of specialized adjudicatory bodies and the formulation of substantial and procedural rules for environmental litigation. In addition to the amendment of relevant acts including the Civil Procedure Act, Administrative Litigation Act, Environment Protection Act, Tort Liability Act, Marine Environment Protection Act, the Supreme People’s Court has also issued three judicial interpretations on the environmental tort liability dispute cases, the civil public interest environmental cases and the marine natural resource and ecological damage compensation dispute cases. Key issues include jurisdiction, prescription, legal standing, cause of action, burden of proof, expert witness, Res judicata, etc. Among them, standing is a highly controversial issue in China with the relaxation of standing in environmental cases a key issue of contention during the past six years. Starting from the amendment of the Civil Procedural Act 2012, till the most recently document issued by the general offices of the CPC Committee and the State Council in December 2017 on the pilot reform in ecological damage compensation, legal standing for filing environmental suits has been established in China: • Aggrieved natural and legal persons may file a civil and administrative lawsuit seeking for compensation to their personal and property damage caused by environmental polluting activities or relevant administrative decisions [Article 65, 68 Tort Liability Act (Article 12 Administrative Litigation Act 2017)]; • NGOs meeting conditions prescribed in Article 58 of Environment Protection Act 2014 may file a lawsuit against activities that cause environmental pollution, ecological damage and public interest harm (Article 58 Environment Protection Act 2014); • The People’s Procuratorate may file a civil lawsuit against any conduct that undermines the protection of the ecological environment and resources, under the condition that there is no authority or organization prescribed by law or the authority or organization prescribed by law does not file a lawsuit (Article 55 Civil Procedure Act 2012);

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• The People’s Procuratorate may prosecute with a people’s court in case that an administrative authority responsible for supervision and administration of ecological environment and resource protection fails to perform its duties upon the procuratorial recommendation (Article 25 Administrative Litigation Act 2017); • Administrative authority responsible for marine environment protection may file a lawsuit on behalf of the state seeking for compensation for any damages caused to marine ecosystems, marine aquatic resources or marine protected areas that result in heavy losses to the state (Article 90 Marine Environment Protection Act); • Local governments of provinces and cities with sub-districts may file a lawsuit seeking for ecological compensation, should the consensus on the compensation could not be reached (Document on the reform of ecological compensation 2017). It is undeniable that with all these rules in black and white, Chinese environmental law is opening the door to a wider scope of plaintiffs accessing environmental justice. However, the situation is indeed confusing with plaintiffs ranging from individuals to government departments filing different lawsuits based on different causes of action. In practice, the priority of initiating litigation has become a serious concern among the public-minded plaintiffs who see the court as the last resort for protecting the environment and citizens’ rights. Therefore, a key next step is to arrange the fragmented rules concerning the legal standing of environmental litigation in a systematic and reasonable way in order to avoid overlaps, gaps and even conflicts. The issue of legal standing is only an example of the existing problems deriving from the rapid development of the judicial specialization of environmental law in China. Strong political will to strengthen judicial power to protect nature can be detected through the mushrooming of specialized environmental tribunals and corresponding rules. Nevertheless, only if the disparate rules are formulated and applied in a cohesive and coherent way can the specialized tribunals provide judicial guarantee for the protection of fundamental human and environmental rights.

3.4 Concluding Remarks Environmental law in China needs to be remodeled so that it not only addresses existing challenges of the promulgation of laws and their implementation. It also needs to be able to respond to the novel challenges of the Anthropocene. In moving towards ecological civilization, the re-conceptualization of environmental law in China needs to involve far more than legal scholars and practitioners. The Anthropocene necessitates interdisciplinary collaboration (Lidskog and Waterton 2016) so as to reshape the rules of human behavior to transition to a new form of civilization. The coordination of different bodies of knowledge and understanding across different theoretical languages are thus required. Trans-disciplinary research goes one step beyond traditional methods of integration. In a multi-disciplinary context, integration occurs at the level of practical goals and in a inter-disciplinary context, integration occurs at the level of scientific issues

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that emerge at the interface between different disciplines (Bergmann et al. 2012). While transdisciplinary approaches mean the integration not only at the level of different academic disciplines but also at the levels of scientific issues and the practical problems themselves (Bergmann et al. 2012). In this process, researchers from various disciplines collaborate deeply in a comprehensive project with the involvement of practitioners in the field (Pohl et al. 2017). The science of sustainability has become an independent and integrated community of knowledge (Kajikawa 2018) which is considered to be multi-disciplinary or even supra-disciplinary (Jahn et al. 2012), therefore research for sustainable development issue requires a trans-disciplinary method. Environmental lawyers are strongly encouraged to investigate trans-disciplinary approaches to enhance environmental rule-making and implementation. The application of this approach should not be confined within the integration of scientists from different disciplinary backgrounds. It should also involve a substantial integration of science and society with the focus on the interaction with stakeholders such as the industries, the governments as well as the general public. Only when rules are formulated and implemented in a way based on the cognitive integration and consensus can they be fully accepted and complied by the whole society. Then environmental law will act as a powerful engine promoting the ecological civilization in future China. The re-conceptualization of environmental law in the move towards “ecological civilization” will need to be realized in a thorough and systematic way all through the legislative, executive and judicial dimensions, and should involve both scholars and practitioners from different backgrounds. In this process, the parallel development of global and local rules will actively interact as China’s strives towards “ecological civilization” and is integrated into a world moving into the era of “Anthropocene”. In the sense of implementation of these environmental rules, strict administrative/Party accountability mechanism and the access to environmental justice will provide strong guarantees for the effectiveness of the future environmental law. Last but not the least, since re-shaping environmental law in the transition to “ecological civilization” is a comprehensive and long-term project, a trans-disciplinary method should be applied so as to involve as many as stakeholders into this course and to aggregate the expertise and efforts from diversified subjects and backgrounds.

References Administrative Litigation Act (2017) http://en.pkulaw.cn/Display.aspx?LookType=1&Lib=law& Cgid=297379&Id=23601&SearchKeyword=&SearchCKeyword=&paycode= Bergmann M et al (2012) Methods for transdisciplinary research. Campus Verlag, Frankfurl, New York, p 41 Civil Procedure Act (2012) http://en.pkulaw.cn/display.aspx?cgid=297379&lib=law Crutzen PJ, Stoermer EF (2000) The Anthropocene. Glob Chang Newslett 41:17–18 Environment Protection Act (2014) http://www.law-lib.com/law/law_view.asp?id=6229

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Gare A (2017) From sustainable development to ecological civilization: winning the war for survival. Cosm Hist: J Nat Soc Philos 3:130–153 Glocalization (2013) Encyclopedia Britannic. https://www.britannica.com/topic/glocalization Government implements river chief system across the country (2018). China Daily. http://www. chinadaily.com.cn/a/201807/17/WS5b4d9664a310796df4df6f21.html Hamilton C (2015) Getting the Anthropocene so wrong. Anthropocene Rev 1:1–6 Lipicki BC (1984) Pyti fopmipovani kologiqecko kyltypy liqnocti v yclovix zpelogo cocializma. Teopi nayqnogo kommynizma 12:43 (Lipitsky BC (1984) The way of the formation of ecological culture under the conditions of socialism. Theory Sci Commun 12:43) Jahn T et al (2012) Transdisciplinarity: between mainstreaming and marginalization. Ecol Econ 79:1–10 Jiang CY (2008) Towards ecological civilization. Guangming Daily. http://theory.people.com.cn/ GB/40557/179596/179599/10784102.html Kajikawa Y (2018) Research core and framework of sustainability science. Sustain Sci 3:215–239 Kim R, Bosselmann K (2015) Operationalizing sustainable development: ecological integrity as a grundnorm of international law. Rev Eur Comp & Int Environ Law 24:194–208 Lewis SL, Maslin MA (2015) Defining the Anthropocene. Nature 519:171–180 Lidskog R, Waterton C (2016) Anthropocene—a cautious welcome from environmental sociology? Environ Sociol 2(4):395–406 Lin YT (1948) The Wisdom of Lao tse. Modem Library, New York Liu HL (2018) Think of the river chief system legislation. Present Day Law Sci 16:15–23 Malm A, Hornborg A (2014) The geology of mankind? A critique of the Anthropocene narrative. Anthropocene Rev. http://dx.doi.org/10.1177/ Oldfield F et al (2014) The Anthropocene review: its significance, implications and the rationale for a new transdisciplinary journal. The Anthropocene Rev 1(1):3–7 Pohl C et al (2017) Ten reflective steps for rendering research societally relevant. Ecol Perspect Sci Soc 9:43–51 Report to the 18th National Congress of the Communist Party of China (2012). http://www.china. org.cn/china/18th_cpc_congress/2012-11/16/content_27137540_8.htm Report to the 19th National Congress of the Communist Party of China (2017). http://news. xinhuanet.com/politics/19cpcnc/2017-10/27/c_1121867529.htm Robertson R (1995) Glocalization: time-space and homogeneity-heterogeneity. In: Featherstone M et al (eds) Global modernities. Sage, London, pp 25–44 Stern RE (2014) The political logic of China’s new environmental courts. China J 72:53–74 Taylor P (2013) The global perspective: convergence of International and municipal law. In: Bosselmann K et al (eds) Environmental law for a sustainable society, 2nd edn. New Zealand Centre for Environmental Law, Auckland, pp 143–166 The Supreme People’s Court of China (2017) White paper on environment and natural resource adjudication (2016–2017). http://www.court.gov.cn/zixun-xiangqing-50682.html Wang SY (2001) Ecological law in Russia. Wuhan University Press, Wuhan Ye QJ (1984) Eco-agriculture: the future of agriculture in China. Chongqing Publishing, Chongqing Zhou D (2018) A feasible way to improve the environmental legislative quality in China: reasonable allocation of legislative issues between the central and local authorities. Local Legis 4:90–103 Zhu M (2017) On the development and promotion of river governor system. Environ Prot 45:58–61

Chapter 4

International Environmental Law in the Anthropocene: Addressing the Gaps Towards ‘Sustainable Development Law’ Fabiano de Andrade Correa and Marina Demaria Venâncio Abstract Modern human societies face a complex socio-ecological crisis marked by unsustainable use of natural resources and increasing environmental degradation. This can be seen as a result of a development model that often neglects planetary boundaries, putting at risk the “safe operating space” for humanity. All of this characterize an era in which humankind has become the force shaping the future of the planet: the Anthropocene. In this context, international environmental law (IEL) is faced with multiple challenges, given its reactive and fragmented nature, and needs to rethink its fundaments in light of anthropogenic global socio-environmental problems. This chapter discusses the role and gaps of IEL through the lenses of sustainable development, and how a different approach could be promoted to face such challenges. Keywords Sustainable development · Anthropocene · Environmental law

4.1 Introduction In November 2018, the death of roughly 23,000 spectacled flying foxes due to a heatwave in Australia sent an alarming message to the world. The episode represented a loss of approximately one-third of the population of this species of fruit bats and was the second-largest of this kind ever recorded in the country (ABC News 2018). Unfortunately, this and many other contemporary calamities linked to extreme or changing weather conditions are becoming increasingly frequent, in a context of a socio-environmental crisis. These events can be considered unintended side effects of the development model adopted by modern societies, which often neglects planetary boundaries and puts F. de Andrade Correa (B) International Consultant, Sustainable Development Law and Policy, European University Institute, Florence, Italy e-mail: [email protected] M. D. Venâncio Fellow of CAPES Foundation, Federal University of Santa Catarinal, Florianópolis, Brazil e-mail: [email protected] © Springer Nature Singapore Pte Ltd. 2019 M. Lim (ed.), Charting Environmental Law Futures in the Anthropocene, https://doi.org/10.1007/978-981-13-9065-4_4

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at risk the “safe operating space” for humanity (see Rockström et al. 2009a, b). This situation calls attention to the urgent need for alternatives to the ‘business as usual’ scenario. There are many challenges to human societies and consequently to International Environmental Law (IEL) in the era in which humans have increasingly become the driving force shaping our planet. To date, IEL has assumed a rather reactive role in preventing environmental degradation. Over the past decades, more than 500 international treaties related to the environment have been signed (UN Environment 2012, p. 464). Yet, IEL has made little progress in putting the world on a more sustainable track (Voigt 2012, p. 164). This chapter discusses the scope and focus of IEL in the Anthropocene, addressing its role while providing reflections on how to address these current complex challenges. To do this, the chapter first addresses some of the shortcomings of IEL and its underlying causes. Following these introductory considerations, the chapter discusses how the principle of sustainable development and its mandate of balancing economic development, environmental protection and social justice provides a useful foundation for IEL to more effectively tackle the underlying causes of environmental degradation. Subsequently, the chapter examines the prospect of a Global Pact for the Environment, and how it could address some of these challenges. The paper concludes by setting out possible entry points for making IEL a more powerful tool in the context of the Anthropocene. This includes examination of a sustainable development approach for environmental governance.

4.2 Sustainable Development in the Anthropocene We are living in an era of unprecedented challenges for humanity, and consequently for international law’s effectiveness as a tool of global governance. At the center of these challenges, the rising influence of humankind on the natural environment is paramount. In fact, it has been recognized that our influence on the Earth has become so pervasive and profound that it rivals the forces of nature. This gives rise to the concept of the “Anthropocene”—the time period in which humanity has become a dominant force on the planet (Steffen et al. 2007). Despite not being formally recognized as a new geological era1 , the notion of the Anthropocene calls attention to the acknowledgment that humankind has been superseding all the limits and boundaries that are a precondition for its own survival. It is therefore critical for environmental policy and law to revisit their fundaments in light of the new complex anthropogenic socio-environmental problems. These problems 1 The

Anthropocene is being discussed by the Anthropocene Working Group, which is part of the Sub-commission on Quaternary Stratigraphy within the International Commission on Stratigraphy—that answers to the International Union of Geological Sciences. In order to be formally acknowledged as geological unit within the Geological Time Scale, all these before-mentioned bodies need to be convinced, and would have to agree on a widely acceptable formulation for the Anthropocene, a process that might take years (Zalasiewicz et al. 2010, p. 2228).

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are truly global, intergenerational, delocalized, incalculable, and non-compensable (Beck 2008, pp. 5–8). The starting point to understand this socio-environmental challenge is the steep increase in the human population that has taken place over the past two hundred years, following the industrial revolution and the expansion of technology. Until the 1800s, the world population was limited to one billion people. This rose to around 3 billion by 1960 then expanded at the exponential rate of contemporary population growth which has resulted in more than 7 billion people worldwide (The World Bank 2019). This challenge will become even bigger, as by the end of the 21st century the planet is expected to be home to more than 10 billion individuals (UN 2011). The growth of the human population has emerged as a planetary challenge due to the development path that has been taking place at global scale, especially since the 1950s (Steffen et al. 2015). Even though the impact of humans is not the same everywhere, our overall lifestyle, based on excessive use of natural resources and reliance on fossil fuels, has been leading the planet to its limits. According to Rockström and colleagues (2009), “[t]he Anthropocene raises a new question: “What are the nonnegotiable planetary preconditions that humanity needs to respect in order to avoid the risk of deleterious or even catastrophic environmental change at continental to global scales?”” As an illustration, it has been estimated that if all the population on Earth would lead the same lifestyle as citizens of many developed countries, it would take a planet many times the size of the Earth to provide the natural resources needed to support it.2 In 2018, Earth Overshoot Day was August 1 (Global Footprint Network 2019). This date, calculated each year by the Global Footprint Network, marks the day in which the demand for resources exceeds what the planet can regenerate for that given year (Global Footprint Network 2019). This means that we are currently utilizing roughly 1.7 Earths (Global Footprint Network 2019), a clearly unsuitable record of production and consumption. There are many other examples of how human impact has been leading the planet towards a socio-environmental crisis: • While the Intergovernmental Panel on Climate Change (IPCC) released its Fifth Report pointing out that ‘human influence on the climate system is clear’ and that ‘the warming of the climate system is unequivocal and unprecedented over decades to millennia’ (IPCC 2014, p. 2), global CO2 emissions have increased to a new all-time record (Netherlands Environmental Assessment Agency 2014, p. 4), and the past four years have been the ‘hottest’ ever recorded (WMO 2018); • Warnings have been extensively made that the accelerating rate of biodiversity loss is leading humanity into new era of mass extinction (Ceballos et al. 2015); • At the same time, income inequality worldwide has been deepening (Mohammed 2015), which shows that while the development model is unsustainable from an environmental perspective, it is also socially unjust; • Likewise, food insecurity in the world has been on the rise for the third year in a row. There are an estimated 821 million undernourished people worldwide. Armed 2 See,

in this regard, a post at: https://persquaremile.com/2012/08/08/if-the-worlds-populationlived-like/, using data from the Global Footprint Network.

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conflicts and climate change are major drivers of the uptick in global hunger (FAO 2018). Of note, the message from the latest IPCC report on the 1.5 °C warming published in October 2018 was clear: “human influence has become a principal agent of change on the planet”, and urgent, coordinated, and cross-sectoral action is needed (IPCC 2018). The report highlighted that the current pledges under the Paris Agreement, namely the intended nationally determined contributions (INDCs), are not enough. According to the IPCC, “[p]athways reflecting these ambitions would not limit global warming to 1.5 °C, even if supplemented by very challenging increases in the scale and ambition of emissions reductions after 2030” (IPCC 2018). Despite the alarming evidence presented by the scientific community, the 24th Session of the Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC) (COP24) still lacked ambition and did not reflect the required sense of urgency. One may, therefore, raise the question of for how long we can still afford to be reactive in responding to the global anthropogenic problems. This context of crisis also depicts that we are ultimately living the challenge of tackling an unsustainable system, which often neglects biophysical limits and planetary thresholds in favor of unrestrained socio-economic development. Addressing this model hence requires cross-cutting, systemic, and proactive frameworks. Moreover, it demands legal practitioners and scholars to (re)think and question the role of IEL in the Anthropocene, as well as its rather linear and reactive nature. One way of doing so is through the lenses of sustainable development.3 As a response to the worsening of the socio-environmental crisis, the concept of sustainable development emerged more than four decades ago and currently plays a major role in modern international governance and law. It dates back to the Club of Rome4 and the Limits to Growth (Meadows et al. 1972). Likewise, it was mainstreamed by the “Our common Future” report, from the World Commission on Environment and Development (WCED), which described sustainable development in 1987 as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs” (UNGA 1987). This resulted in the three-pillar notion5 that is still widely adopted by the UN System and prominent in the 2030 Agenda for Sustainable Development.6 3 It

is important to point out here that there are multiple views and perspectives on the concept and nature of sustainable development. Many scholars (e.g. see Winter 2008) call for a re-signification of the concept, or for a notion of strong sustainability (Ott 2003). Delving into this discussion, despite timely and extremely relevant, does not belong to the aim of this chapter, which chose to address the theory of “sustainable development law”, mostly for methodological reasons linked to bringing the discussion closer to the mainstream concept in the UN System. 4 Regarding the Club of Rome, see more at: https://www.clubofrome.org/. 5 Based in the three pillars: society, economy and environment. 6 The 2030 Agenda for Sustainable Development, adopted by all United Nations Member States in 2015, provides a blueprint for sustainable development, pledging to ‘leave no one behind’. At the core of the Agenda, the 17 Sustainable Development Goals (SDGs), which are an urgent call for action by all countries recognizing that ending poverty and other deprivations must go handin-hand with strategies that improve health and education, reduce inequality, and spur economic

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From a legal perspective, the concept of sustainable development has two main normative dimensions: firstly, a reorientation of the notion of development itself. A modern conceptualization of development moves the focus away from economic growth of the state (measured by GDP) towards human development.7 In this conceptualization, the individual is the main subject of the development process through the realization of all human rights, including rights such as the right to life and right to a healthy environment. In addition, sustainable development has an intergenerational/temporal dimension, represented by the ‘sustainability’ component. This translates as the need to balance economic growth, social justice, and environmental preservation if human development is to be sustainable over time. These normative dimensions have also two major related goals: to promote equity and the integration of socio-environmental considerations into all levels of governance.8 However, the considerations made in this section confirm that humanity is going directly against the mandates of sustainable development, contradicting the pledge made through the Sustainable Development Goals (SDGs) and the 2030 agenda. Translating the concept of sustainable development into reality remains a considerable challenge, even as the political discourse increasingly encompasses it as an overarching goal. Within this context, we will further address in the next section the issue of the challenges faced by IEL in the Anthropocene and the necessity of a new paradigm in law towards achieving sustainable development.

4.3 International Environmental Law Needs a New Paradigm: Challenges of IEL International Law (IL) is the body of rules and norms governing the interaction between states, as well as between other international actors (Joyner 2005, p. 4). Its rationale can be explained in three different ways: IL works as the law of nations, given the interest of states to follow similar rules or apply like standards in their domestic legal orders, such as in commercial transactions; secondly, it is justified due to states’ interest in reciprocally limiting their own liberties in order to respect sovereignty and justify non-interference on internal matters; thirdly, and most significantly, states have found IL helpful as a means of achieving common international goals (e.g. environmental protection and sustainable development) (Janis 2008, p. 8). Bearing these observations in mind, IL is more important than ever to the internagrowth while tackling climate change and preserving the environment. See for more information: https://sustainabledevelopment.un.org/sdgs. 7 See, in this regard, the work of Nobel Prize winner economist Amartya Sen, Development as Freedom, 1999, OUP. 8 These ideas have been exposed in the lead author’s Ph.D. thesis, ‘The implementation of sustainable development in regional trade agreements: a case study on the European Union and MERCOSUR’, defended in June 2013 at the European University Institute, at: http://cadmus.eui.eu/handle/1814/ 28034. Accessed 29 Jan 2015.

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tional community as a system of norms and principles to address shared challenges of the Anthropocene such as climate change, biodiversity loss, and persistent pollutants. Within IL, IEL is the main regime that aims to manage the relationship of humans with the natural environment, hence it is key to addressing the challenges mentioned above. The scope of IEL has been evolving from its origins as an ‘international conservation law’ focusing on conservation of nature, particularly wildlife. Contemporary IEL law has a wider scope of environmental protection (of issues such as air, water, and land), encompassing even the protection of nature per se. However, if IEL is to address the root causes of environmental degradation in the Anthropocene, our understanding of environmental issues must better comprehend economic and social issues and, as one commentator puts it, become “the international law of sustainable development (Bodansky 2010, pp. 17–18).” There is growing recognition of the fact that unsustainable human behavior is motivated largely by the failure of our economic systems to recognize the value of nature and ecosystem services. To give an example, IUCN highlights that economic activities leading to biodiversity degradation are permitted or even encouraged due to failures and distortions in markets, laws, policies, and institutions that govern production and consumption, and make it more or economically attractive to degrade and/or overuse natural resources instead of using them sustainably (Emerton 2000, p. 5). In a world largely driven by capitalism, it should be recognized that for sustainability to be embraced by society, it would need to be not only a moral imperative but also cost-effective. For IEL to be an instrument for change, it would need to be more than a law of conservation or protection. It needs to be an instrument enabling the integration of environmental considerations into economic and social decision and rulemaking. It should be a tool promoting sustainable and fair use of natural resources, which allows for economic and human development but within planetary boundaries. Conservation and protection will always be values worth promoting. However, given the pressures of population growth, coupled with the development paths that currently characterize most of our societal models, the balancing promoted by sustainable development needs to be enabled through rules that promote this integration. Integration in the context of sustainable development, as Voigt (2013) points out, certainly does not and cannot imply granting the same weight to all concerns involved, but rather making commitments that are sustainable as a whole. Integration should respect planetary boundaries, occur “within a proper framework for decisionmaking”, and belong to an overarching goal of ecological integrity (Voigt 2013, p. 147), understood as “human development that (at a minimum) sustains important biophysical processes that support plant, animal and human life and that must be allowed to continue without significant change” (Voigt 2013, p. 151). In order to operationalize this, there is a need for IEL to support protection and conservation on on the one hand by punishing misconduct. At the same time, IEL should also recognize the economic value of nature and enable sustainable management of ecosystems and natural resources, whose value should be properly integrated. Such an approach would address the real causes of environmental degradation, and

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be instrumental for the goal of sustainable development, which is by now more than just an aspirational concept. Through the adoption of the SDGs in 2015, the international community has reaffirmed sustainable development as an overarching goal to be achieved in its three dimensions—economic, social and environmental. The 2030 Agenda sets out a plan that all countries and stakeholders, acting in ‘collaborative partnership’, are to pursue and implement (UNGA 2015). In this regard, it has placed sustainable development as the overarching paradigm for the international community. Notably, the 2030 Agenda highlights that the rule of law and access to justice are fundamental to sustainable development (UNGA 2015, paragraph 9), and encompasses within SDG 16 a sub-goal to “promote and enforce non-discriminatory laws and policies for sustainable development” (UNGA 2015, SDG 16.b.). The SDGs therefore recognize the relevance of the legal sphere in enabling realization of the whole set of SDGs. Bearing this in mind, the next section discusses the rise of the so-called “sustainable development law”, addressing the potential of sustainable development to guide the legal transformations required to address the challenges of the Anthropocene.

4.3.1 The Emergence of Sustainable Development Law Many scholars already recognize the emergence of ‘sustainable development law’, described as a set of substantive and procedural norms at the intersection of international economic, social and environmental law. One example of such norms is laws that mandate ‘(environmental, social or sustainability) impact assessment’ procedures for projects and policies to be approved, requiring a balance of the three spheres to be pursued. Further, scholarship also notes the emergence of sustainable development as a principle of law that requires the balancing of conflicting interests of economic growth, environmental protection and social justice in decision making as well as concrete cases, such as decisions by international and national courts worldwide (Segger 2004, pp. 45–50, 368–371). However, the principle of sustainable development still lacks an undisputed underpinning in a binding international instrument. While the normative elements of sustainable development clearly make it an objective and a guiding principle of the international community,9 its recognition as a norm of international law would strengthen its applicability and uptake at all levels of governance. Sustainability is an imperative, and IEL must be instrumental in acheiving this goal. For too long IEL has been considered a weak subject of law, one that has an unrealistic focus on preservation and does not address the real causes that lead to 9 See,

for instance, the ILA Declaration of Principles of International Law Relating to Sustainable Development (ILA 2002); jurisprudence of the International Court of Justice (e.g. concerning the Gagcikovo Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, records available at: www. icj.cij.org.

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unsustainable outcomes; one with norms based on soft laws and often lacking the “teeth” to achieve its goals due to more pressing power of economic laws and institutions (Voigt 2009).10 A stronger type of IEL focusing on ‘sustainable development’ would be more fit to overcome the pressing challenges of our times, which are a complex combination of environmental over-exploitation, pushed by negative economic incentives and leading to unsustainable social consequences. Within this scenario, there are some interesting examples on how IEL can be more instrumental to achieve more sustainable outcomes, as it is highlighted in the next sub-section.

4.3.2 Advancing Sustainable Development Law in the Anthropocene For instance, IEL could focus more in enabling frameworks for incentives that can motivate and mainstream sustainable development. In this way, IEL would be more a law of integration and sustainable use. Some regimes of IEL already include examples such goals and mechanisms, such as the United Nations Convention on Biological Diversity (CBD), signed in 1992, one of the most important multilateral environmental agreements to date. It is the core international instrument addressing biodiversity issues, with a threefold objective of promoting conservation, sustainable use and equitable sharing of the benefits of biodiversity. The CBD contains a combination of more traditional ‘conservational’ measures, such as the establishment of protected areas (art. 7(a)), with explicit provisions that mandate parties to, as far as possible, promote incentives for the conservation and sustainable use of components of biological diversity (art. 11). The 20 Aichi Biodiversity Targets are the key elements of the CBD Strategic Plan for Biodiversity 2011–2020, established at the Conference of the Parties (COP) 10 in October 2010 in Nagoya, Japan. The Strategic Plan and its corresponding set of Targets represent the overarching international framework on biodiversity for the 193 CBD Parties and the UN system. Aichi Biodiversity Target 3 encourages the use of incentives for biodiversity conservation and sustainable use to address underlying causes of biodiversity loss, particularly the widespread undervaluation of biodiversity and ecosystem services. Target 3 mandates countries to develop and apply innovative incentives, including instruments such as payment for ecosystem services (PES); biodiversity offset mechanisms, ensuring against undermining of unique components of biodiversity; environmental fiscal reforms, including innovative taxation models and fiscal incentives; promising innovative market-based mechanisms such as markets for green products, business-biodiversity partnerships and new forms of charity funding; integration of biodiversity and ecosystem services considerations in international development finance; and encouragement of parties to the United Nations Framework Convention on Climate Change (UNFCCC) to take biodiversity 10 To

give an example, the WTO regime is often cited. For an interesting discussion of this issue, see Ahner (2009).

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into account when developing any funding mechanisms for climate change (IDLO 2014). Along these lines, the Sharm El-Sheikh to Beijing Action Agenda for Nature and People was launched under the auspices of the last COP 14 in Egypt. In light of the preparation to COP 15, the Action Agenda gives special attention to concrete commitments and contributions to biodiversity, and aims at catalyzing “a groundswell of actions from all sectors and stakeholders in support of biodiversity conservation and its sustainable use, while enabling the mapping of current global efforts, in order to asses impact and gaps” (CBD 2018). According to its vision: Through promoting nature’s fundamental role in our economic, social, and ecological systems, as the infrastructure supporting life on Earth and human sustainable development, the Agenda will enable a paradigm shift in the human-nature relationship: from abuse and neglect to respect, value and sustainability (CBD 2018).

As another example, the UNFCCC and the 2015 Paris Agreement also include rules allowing Parties to pursue the goal of reducing greenhouse gas (GHG) emissions through a selection of policy tools and mechanisms like carbon taxes or emission trading schemes (e.g. Article 6 of the Paris Agreement), which operate on an economically based rationale. Mechanisms to “put a price on carbon” have been gaining support over the past years as they represent a promising climate policy approach to reduce emissions and drive low carbon investments. Carbon pricing aims to capture the externalities (e.g. the unaccounted environmental costs) of carbon emissions and tie them to their sources through a price. Emissions trading systems (ETS) are the most widespread type of carbon pricing instruments (The World Bank 2018), also referred to as a cap-and-trade system. Such schemes set an overall cap on the total level of GHG emissions and allows industries with low emissions to sell extra allowances to larger emitters. By creating supply and demand for emissions allowances, an ETS establishes a market price for GHG. The cap helps ensure that the required emission reductions will take place to keep the emitters (in aggregate) within their pre-allocated carbon budget. There are well-known example of ETS around the world, chiefly the one created by the European Union, which operates since 2005 (see European Commission 2018). The further development of IEL rules that enable mechanisms promoting this recognition of the value of nature and environmental services, as well as quantifying environmental degradation and discouraging environmentally unsustainable practices, could be a promising way for IEL to be effective in addressing the challenges of the Anthropocene. This approach would change IEL from a (mainly) reactive type of regime, focused on conservation/preservation and punishment of environmental damage, to a regime with a proactive approach creating mechanisms with a clear goal of promoting sustainable behavior by society. This should also be coupled with providing IEL with more binding power, as many of the IEL rules operate on a ‘soft-law’ basis (e.g. the principle of sustainable development). In addition to international agreements and rules promoting these goals, such incentives need to be backed by enabling legal and institutional frameworks to be implementable at national level. These laws and institutions will not have a purely

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environmental perspective: laws creating fiscal incentives for biodiversity conservation or enabling regulations for payment for ecosystem service mechanisms should not have as main goal the objective of securing revenue from taxes or putting a price on the preservation of a particular ecosystem. Rather, the goal should be, in a sustainable development oriented fashion, to provide economic incentives for practices that promote sustainability, combining economic, social and environmental goals.

4.4 The Way Forward: A Global Pact for the Environment? After years of intense environmental legislative and judicial action, the worsening of the socio-environmental crisis clearly underscores the need for a change in the way in that IEL has been addressing the complex anthropogenic problems. The examples set out in the previous section briefly illustrate that addressing the externalities of the system and, hence, moving towards a ‘sustainable development law’ is possible. Nonetheless, a structural change is certainly needed. In this sense, it is worth discussing here the latest developments in terms of a Global Pact for the Environment (GPE). The GPE’s initiative was launched in 2017 seeking to establish at the UN level a legally binding instrument aimed at bringing together, in a systematic way, the IEL principles laid out in documents such as the Declaration of the United Nations Conference on the Human Environment (1972), the World Charter for Nature (1982), the Rio Declaration on Environment and Development (1992), and the IUCN World Declaration on the Environmental Rule of Law (2016), and other instruments to strengthen the rule of law (IUCN 2019). Among these principles, sustainable development is (arguably) the most prominent, serving as an umbrella of different principles. In 2018, the UN General Assembly Resolution No. 72/277, entitled ‘Towards a Global Pact for the Environment’, requested “a technical and evidence-based report that identifies and assesses possible gaps in international environmental law and environment-related instruments with a view to strengthening their implementation”. It likewise established an ad hoc open-ended working group (AHWG) to consider the report, discuss options to address these gaps and, if deemed necessary, discuss an international instrument: a global pact (UNGA 2018a, b). The first organizational session of the AHWG was held in New York in September 2018, and the second substantive session of the AHWG will be held in March 2019. The technical report, named “Gaps in international environmental law and environment-related instruments: towards a global pact for the environment” was released in November 2018. According to it, “[…] the fragmented structure of international environmental law and the incremental process of regime creation inevitably lead to the situation where some environmental challenges are addressed, while others are not” (UNGA 2018a, b, p. 4). The report therefore revealed deficiencies and gaps at multiple levels, calling out the States and the United Nations to work together to address them (UNGA 2018a, b). Among its relevant conclusions, we can highlight:

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• Implementation of IEL is still a problem both in the national and international spheres. • There is not an overarching normative framework that establishes the general application rules and principles for IEL, despite their potential to fill normative gaps and to tackle the current sectoral approach to IEL (UNGA 2018a, b). • Likewise, there are deficiencies regarding the content and legal status of certain environmental law principles, including sustainable development. As stated in the report, “questions remain as to the extent to which the sustainable development principles represent binding or non-binding rules or indeed whether they should constitute a source of law. (…) Another gap relates to the fact that sustainable development still awaits its effective implementation as a holistic legal concept with regard to addressing the relationship between international environmental law and other fields of international law” (UNGA 2018a, b, pp. 11–12). • Lack of clarity in terms of content and status of many environmental principles means that articulation of the relationship between environment-related instruments and multilateral environmental agreements remains precarious (UNGA 2018a, b). • IEL is inevitably fragmented, given the “piecemeal, incremental and reactive nature of international environmental law-making” (UNGA 2018a, b, p. 43). There is also a lack of synergy among sectoral regulatory frameworks (UNGA 2018a, b). • Several coherence and coordination challenges arise from the institutional fragmentation and heterogeneity of actors of international environmental governance (UNGA 2018a, b). • There is a clear need for clarification and reinforcement of the principles of international environmental law. “A comprehensive and unifying international instrument that gathers all the principles of environmental law could provide for better harmonization, predictability and certainty” (UNGA 2018a, b, p. 18). To address these gaps, the draft GPE proposes measures such as including references to key principles of IEL, including sustainable development in Article 3 “Integration and sustainable development” (Le Club des Juristes 2017). In its current proposal,11 the GPE would mandate Parties to pursue sustainable development, including through the promotion of public support policies, patterns of production and consumption both sustainable and respectful of the environment (Le Club des Juristes 2017). The IUCN World Commission on Environmental Law (WCEL), the International Council of Environmental Law (ICEL), and the International Group of Experts for the Pact (IGEP) conducted an independent assessment and released in December 2018 the “Note on the United Nations Secretary General’s Report”, recognizing the Report as a milestone in the development of IEL and the relevance of implementing the SDGs. It addresses key-issues regarding the forthcoming consultations on the Pact, and highlights: 11 The

current draft GPE presents shortcomings that need to be properly addressed. For a further analysis of the draft pact see Kotzé and French (2018).

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F. de Andrade Correa and M. D. Venâncio The incomplete character of international environmental law is likely to retard the attainment of all of the SDGs. If States collectively can acknowledge the environmental law principles that most of them already explicitly embrace, they are apt to cooperate more effectively in the 2030 Agenda. Moreover, adhering to these general principles of law can guide conduct in subject areas where treaties or national legislation are still lacking. The principles also would afford guidance for tribunals and specialized agencies in their decision-making (WCEL, ICEL, IGEP 2018, p. 21).

As stated by WCEL, “[t]he endorsement of a Global Pact will set the stage for making agreement on giving priority to the 2030 Agenda. Each of the Pact’s principles can be aligned behind different SDGs and their agreed indicators” (WCEL, ICEL, IGEP 2018, p. 28). The GPE, when and if adopted, would be a starting point to build a stronger body of IEL, including also the principle of sustainable development as a binding norm of IL. The further development of rules and mechanisms that promote this integration of goals and legal regimes in the economic, social and environmental areas will be determinant if we are to face and overcome the challenges of the Anthropocene.

4.5 Final Remarks The challenges of our times require a change of rationale in our laws and policies to reflect the real causes of our unsustainable behavior, and provide effective and feasible solutions. In the context of the Anthropocene, this paper has suggested that IEL needs to further embrace ‘sustainable development’ and create norms that operationalize a different approach, one that goes beyond a reactive and conservationist approach and moves towards an active role in enabling sustainable practices that take into account the value of nature and the real cost of pollution and degradation for society. A ‘Global Pact for the Environment’, or a similar international binding instrument that consolidates international principles such as sustainable development would not only give IEL stronger “teeth”, but also send a clear political message that the international community is conscious and ready to face the (likely) biggest challenge it has ever faced: the fact that our own behaviour might put us out of a liveable home planet in the very near future.

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Chapter 5

Ecological Restoration as a Legal Duty in the Anthropocene An Cliquet

Abstract Ecological restoration provides an important way to address the ongoing biodiversity crisis and other exceedance of safe planetary boundaries. However, the Anthropocene poses challenges for ecological restoration, such as determining the (historical) reference system. In light of these challenges, some have proposed concepts such as novel ecosystems. This concept however lacks clarity and seems superfluous. It could also be abused to undermine restoration commitments. The Anthropocene also makes restoration more challenging from a legal perspective. Although there is a legal duty to restore in international law, restoration commitments have not been reached. The international legal framework lacks concrete definitions and guidance for ecological restoration. In order to fulfill their duty to restore, states are obliged to take sufficient measures to attain a high level of restoration. Possible ways to advance ecological restoration in the Anthropocene could include new legislation and principles and standards for restoration. Also, bolder steps are necessary, such as a substantial increase in the protection and restoration of nature towards half of the planet. Keywords Ecological restoration · Standards · International environmental law · Planetary boundaries · ‘Half Earth’

5.1 Introduction Humans are impacting the Earth to such an extent that already some planetary boundaries, which allow a safe operating space for humanity, have been exceeded (Rockström et al. 2009; Steffen et al. 2015). Four of nine planetary boundaries have now been crossed as a result of human activity. This includes loss of biosphere integrity, measured by the rate of biodiversity loss. Biosphere integrity, including both biodiversity loss and ecosystem functioning, has been identified as a core planetary boundary (Steffen et al. 2015). Biodiversity loss has increased to such an extent that we are facing a sixth mass extinction. Contrary to the five previous mass extincA. Cliquet (B) Department of European, Public and International Law, Ghent University, Ghent, Belgium e-mail: [email protected] © Springer Nature Singapore Pte Ltd. 2019 M. Lim (ed.), Charting Environmental Law Futures in the Anthropocene, https://doi.org/10.1007/978-981-13-9065-4_5

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tions, humans are the dominant cause of this mass extinction (Ceballos et al. 2015). We are facing alarming losses of species populations (Ceballos et al. 2017) and wilderness areas (Watson et al. 2016). To reverse this, the first priority should be to conserve remaining nature in situ through prohibition of human activities or the minimization of impact thereof. However, in light of the strongly degraded state of many ecosystems, conserving what is left, will not suffice to reverse current trends of biodiversity loss. Ecological restoration has, for many decades, been advanced as a way to reverse biodiversity loss (Aronson and Alexander 2013). Restoration is, however, but one approach. Effective management and prevention of further damage to ecosystems remain crucial (Menz et al. 2013). However, avoiding future damage by conserving what is left can prove illusory if prevailing conditions are too degraded. Ecological restoration can therefore be regarded as ‘the necessary twin of sustainability’ (Richardson 2016) as it provides a promising strategy to address our failure to prevent ecological damage (Bastmeijer 2016). Ecological restoration has been defined by the Society for Ecological Restoration (SER) as “the process of assisting the recovery of an ecosystem that has been degraded, damaged, or destroyed” (Society for Ecological Restoration 2004). Restoration ecology, the science behind ecological restoration, is a relatively new branch within natural sciences, but has developed at a rapid pace (see for example van Andel and Aronson 2012). In recent years, the approach has also gained increasing legal attention (see for example Bastmeijer 2016; Richardson 2016; Telesetsky et al. 2017; Cliquet 2017). The Anthropocene, where human activities have so profoundly altered the planet as to push it into a new geological epoch (Crutzen and Stoermer 2000), poses additional scientific and legal challenges to ecological restoration. This chapter examines whether and how strengthening legal frameworks for ecological restoration can contribute to addressing key impacts of the Anthropocene. First, we will look at the challenges for ecological restoration in times of rapid and fundamental environmental change. Second, we will address the international legal framework on ecological restoration and its potential for further development. Finally, we will look to possible ways forward, in order to advance ecological restoration in the Anthropocene.

5.2 Challenges for Ecological Restoration in the Anthropocene 5.2.1 Defining the (Historical) Reference System According to the SER Primer (Society for Ecological Restoration 2004), restoration attempts to return an ecosystem to its historical trajectory. However, climate change and other changes to ecosystems can fundamentally alter ecosystem functions. This makes restoring an ecosystem to a prior state more difficult, or even sometimes

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impossible. If ecosystems have been altered to such an extent that prior conditions cannot be restored, is it useful or even possible to refer to a (historical) reference system and which reference system should be used to set restoration objectives? Is restoration about going back to the past and is this still feasible in the Anthropocene? The SER Standards on ecological restoration (McDonald et al. 2016) define an ecological restoration activity as “any activity whose aim it is to ultimately achieve ecosystem recovery, insofar as possible and relative to an appropriate local native model (termed here a reference ecosystem), regardless of the period of time required to achieve the recovery outcome” (McDonald et al. 2016, p. 9). A reference ecosystem is defined as “a model characteristic of the particular ecosystem that informs the target of the restoration project. This involves describing the specific compositional, structural, and functional ecosystem attributes requiring reinstatement to a self-organising state leading to full recovery” (McDonald et al. 2016, p. 11). A reference ecosystem can also be a semi-natural ecosystem: the SER Standards recognize that many ecosystems around the world have been shaped to a greater or lesser extent by human utilization (such as hay meadows in Europe). These can also be considered as native ecosystems and legitimate reference models in an ecological restoration context. Restoration is thus not about recreating the past, but rather striving to re-establish the historical trajectory of an impaired ecosystem. This is not a static vision, but rather a dynamic and adaptive one. ‘Historical’ does not invariably mean pre-disturbance, pre-alteration or pre-degradation (Balaguer et al. 2014). A restored ecosystem therefore need not necessarily be identical to the historical reference system. A historical reference system rather provides information that guides a restoration project. This information can help to define goals for restoration and could be used as a means of assessing outcomes (Palmer and Ruhl 2015). In recommending principles for ecological restoration, Suding et al. (2015) proposed that restoration is informed by the past and the future. Historical knowledge can indicate how ecosystems functioned in the past and can provide references for identifying potential future trajectories and measuring functional and compositional success of projects. In the era of the Anthropocene where sometimes conditions differ fundamentally from the past, history can serve more as a guide for determining appropriate restoration goals. It is most likely impossible to produce replicas of historic ecosystems. But restoration can connect to the past by producing ‘authentic ecosystems’. An authentic ecosystem is a self-regulating ecosystem with the expected level of biodiversity and complexity of ecological interactions, given historic, geographic and climate factors (Dudley 2011, cited in Allison 2017). According to the SER Standards on restoration (McDonald et al. 2016) adopting a reference ecosystem “should not be viewed as an attempt to immobilize an ecological community at some point in time, or to ‘turn back the clock’.” The purpose of selecting a reference ecosystem is “to optimize the potential for local species and communities to recover through well-targeted restoration actions and continue to reassemble and evolve in the face of change. For this reason, the reference model primarily involves consideration of contemporary examples or analogues of the predegradation ecosystem where they exist. Otherwise historical information is used

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as a starting point for identifying restoration targets, considering natural variation and anticipated future environmental change. In this way restoration reconnects the states and conditions of an ecosystem’s historic past to those that develop in the future” (McDonald et al. 2016, p. 12). With regards to reference ecosystems in cases of irreversible environmental change, the Standards recommend that practitioners design restoration projects based on local native reference ecosystems, and be ready to adapt these in light of observed or likely changes occurring within these ecosystems, as informed by appropriate research and practice.

5.2.2 Towards ‘Novel’ Ecosystems? Some scientific literature suggests that in certain cases efforts should no longer be made to return an ecosystem to a historical reference point. Rather, decision-makers should embrace new opportunities to introduce species and habitats that will be more resilient to existing climate conditions (see for instance Hobbs et al. 2009). If changes are so drastic that the original keystone species are lost and many of the original ecosystem functions are lost or altered, then an ecosystem may become a ‘novel ecosystem’ where restoration to a historical baseline might be impossible (Allison 2012). The concept of ‘novel ecosystems’ has gained a lot of attention in the scientific literature (see for instance Hobbs et al. 2009, 2013), but has also raised concerns among restoration scientists and practitioners and has led to discussion on the implications for management of these novel ecosystems (see for example Truitt et al. 2015). Both from a scientific and legal viewpoint this concept is flawed and superfluous. Firstly, there is lack of clarity regarding the meaning of the concept. If the concept is understood as ecosystems being changed by human activities, then semi-natural habitats, as we find them in most of Europe for instance, can also be considered as ‘novel’ ecosystems, and are legally recognized and protected as ‘semi-natural habitats’ (Habitats Directive 1992). The whole concept of novel ecosystems might thus not be so ‘novel’ at all. Even authors advocating this concept recognize that all ecosystems can be considered ‘novel’ when placed in the appropriate temporal context (Hobbs et al. 2009). Obviously, these authors make a distinction with the current novel ecosystems which are characterized by new species combinations because of species invasions or environmental change. But it is unclear how much change should have occurred before a system can qualify as being novel. The concept might create the impression that novel ecosystems are ‘the new normal’, and that restoration towards a historical trajectory has become difficult, if not impossible for many ecosystems. However, many ecosystems, even when degraded, can be restored to some extent. It should not be automatically assumed that species or assemblages cannot adapt to rapid changes (Murcia et al. 2014). Even when novel ecosystems involving new species assemblages could be considered necessary, the use of historical information may still be significant as a source of context and constraint in shaping the goals of restoration projects. Historical knowledge will play

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a key role in restoration, for example in improving understanding of range shifts, species interactions and adaptive capacity, regardless of the extent to which it is used as the basis of goal-setting (Keenleyside et al. 2012). The concept of novel ecosystems could possibly lead to undesirable policy and legal effects (see also Simberloff et al. 2015). If the loss of original keystone species and habitats are seen as inevitable, this could lead to a weakening of the protection system of these habitats and species and could reduce the willingness to undertake restoration efforts. It might lead to declassification of protected areas or species, using the argument that the keystone species and habitats for which the area has been designated are lost and cannot be restored. However, species can also disappear due to insufficient management or fragmentation and other negative impacts on biodiversity. So far, there is no proof of a point of no return, of ecological thresholds that prevent restoration. It is rather political and financial thresholds that will hamper restoration projects (Murcia et al. 2014). The advocates of the novel ecosystems concept call for more flexibility in conservation and restoration law (see for instance Bridgewater and Yung 2013) in order to cope with these environmental changes. However, a claim for flexibility could lead to a weakening of conservation and restoration laws. The alleged rigid character is not necessarily substantiated in legal research. For instance, the EU Habitats Directive has sometimes been depicted as rigid and static. A legal evaluation of the Directive however shows that it is able to cope with environmental changes such as climate change (e.g. Trouwborst 2015).

5.3 Legal Challenges for Ecological Restoration 5.3.1 Defining the Legal Duty to Restore There has been increased attention to ecological restoration in Multilateral Environmental Agreements (MEAs) such as the Convention on Biological Diversity (CBD 1992) and the Convention on Migratory Species (CMS 1979) and regional instruments such as the European Union Habitats Directive (1992). Various Conference of Parties (COP) decisions under MEAs also explicitly address ecological restoration (see Telesetsky et al. 2017). This includes the CBD Aichi targets (CBD 2010) and in particular target 15 which states “By 2020, ecosystem resilience and the contribution of biodiversity to carbon stocks has been enhanced, through conservation and restoration, including restoration of at least 15% of degraded ecosystems, thereby contributing to climate change mitigation and adaptation and to combating desertification.” The CBD has elaborated on ecosystem restoration in subsequent COP decisions, including Decision XI/16 on ecosystem restoration (CBD 2012), Decision XII/19 of 2014 on Ecosystem conservation and restoration (CBD 2014), and Decision XIII/5. Ecosystem restoration: short-term action plan (CBD 2016). The numerous references and obligations to restoration in international legal instruments have led Telesetsky et al. (2017) to conclude that there is a duty to

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restore in international law. A recent court decision from the International Court of Justice has also recognized the necessity of ‘active’ restoration measures (ICJ 2018) as “…natural recovery may not always suffice to return an environment to the state in which it was before the damage occurred….” (para 43). In light of the various conventions and soft law instruments that include obligations on restoration, and the recognition of this duty by the ICJ, the legal duty to restore has matured into a customary obligation (Telesetsky et al. 2017). It can be considered as an emerging legal principle (Telesetsky 2013). In spite of the increased attention to restoration in international law and policy, there remain many challenges regarding the legal duty to restore. Although the duty has been codified across numerous multilateral and regional conventions and other regional instruments, the precise content of the legal duty is not always clear (Telesetsky et al. 2017). There is often no clear definition of what constitutes or qualifies as restoration. For instance the Aichi target to restore 15% of degraded lands by 2020, does not define restoration. In COP Decision XI/16 of 2012, State Parties were urged to develop clear terms and definitions of ecosystem rehabilitation and restoration and to clarify the desired outcomes of implementing restoration activities (CBD 2012). The COP thus acknowledged that, two years after the establishment of the target, they still did not know what the definition of restoration was or what the outcome of such activities would be. The lack of definition will make it difficult to measure progress towards achieving this Aichi target (Jørgensen 2013). International legal instruments on restoration also usually lack guidance on which (historical) reference system should be used to set restoration goals. In the European Union some clarification can be found. The European Commission in its Biodiversity Strategy Impact Assessment defined restoration as: “The return of an ecosystem to its original community structure, natural complement of species, and natural functions.” (European Commission 2011). The Habitats Directive does not, however, provide guidance on which historical reference point to use. The information from the past on a pre-degradation state (whether natural or semi-natural) is important to define the future goals, such as the goal of a ‘favourable conservation status’ in the EU Habitats Directive. According to the Directive, the conservation status of a natural habitat will be taken as ‘favourable’ when: its natural range and areas it covers within that range are stable or increasing, and the specific structure and functions which are necessary for its long-term maintenance exist and are likely to continue to exist for the foreseeable future, and the conservation status of its typical species is favourable as further defined in the Directive. So, the Habitats Directives requires a restoration of structure, functions and species composition. In the European Commission guidelines on reporting on the conservation status of species and habitats, historical information is explicitly mentioned in determining favourable reference values for habitat types and species: favourable reference values do not automatically correspond to a given ‘historical maximum’, or a specific historical date. However historical information (e.g. a past stable situation before changes occurred due to reversible pressures) should, however, inform judgements on favourable reference values (DG Environment 2017).

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5.3.2 Outcome of the Legal Duty to Restore The restoration obligation means that states have to take the necessary measures that enable the recovery of species or ecosystems. Ecological restoration attempts to move the ecosystem in question back to a more structurally ‘intact’, well-functioning state (Keenleyside et al. 2012). It seeks ‘highest and best effort’ progression towards full recovery (McDonald et al. 2016). States have a duty to restore, even if full recovery is not possible. Full recovery is defined as the state or condition whereby all the key ecosystem attribute categories closely resemble those of the reference model. Where only lower levels of recovery are possible despite best efforts, the recovery would be referred to as partial recovery (McDonald et al. 2016). Is it unrealistic or even undesirable to impose legal restoration duties on states when fundamental changes to ecosystems render restoration to a reference ecosystem more difficult? As pointed out above, ‘ecological restoration’ is described as a process to assist the recovery of an ecosystem. When restoration is seen as a process (activity) rather than an outcome (recovery), than the obligation to restore does not pose insurmountable challenges. Full recovery is not possible or appropriate everywhere, and even where it is possible, it may take a very long time before it can be realized. In order to fulfill their duty to restore, states are obliged to take sufficient measures to attain a high level of restoration, the ‘highest and best effort’ as mentioned in the SER Standards. To guarantee the outcome towards full or partial recovery, it is important that the restoration duty is linked to standards for restoration, imposing the highest and best efforts. Simply trying would not satisfy the obligations of states to restore. Indirectly, the outcome to obtain (full) recovery can also be guaranteed in law through linking the restoration duty to a certain goal. At the EU level for instance, the duty to restore in the Habitats Directive has to be seen in light of the general aim of the Habitats Directive, as put forward in Article 2, Section 1, which is to contribute towards ensuring biodiversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member States to which the Treaty applies. This aim is considered a result obligation (European Commission 2000). Article 2, Section 2, in particular, specifies the objective of the measures to be taken: “Measures taken… shall be designed to maintain or to restore, at a favourable conservation status, natural habitats and species of wild fauna and flora of Community interest”.

5.3.3 Implementation Challenges Although worldwide restoration initiatives have been initiated, mid-term assessments show that international obligations and targets on restoration are far from being met (Secretariat of the Convention on Biological Diversity 2014; Tittensor et al. 2014). This is caused by a lack of implementation of restoration obligations; the lack of ambition in restoration measures; and the lack of understanding of the ecological

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complexities that form the basis of restoration measures. In particular, the delayed effects of environmental changes on ecosystems and species (such as extinction debt) are insufficiently taken into account in conservation and restoration efforts (Cliquet and Decleer 2017). Furthermore, not all restoration projects qualify as ‘ecological restoration’ (Palmer and Ruhl 2015). Some international commitments for restoration, especially for forests, are predominantly focused on the role of climate change mitigation and do not guarantee that forests will be restored to fully functioning ecosystems. Such efforts can also be at the expense of other ecosystems, for example planting trees in grassland ecosystems (Veldman et al. 2015). Current restoration practices are also often too fragmented to succeed as strategies for meeting the challenges of the Anthropocene (Telesetsky 2013). It is clear that, if restoration is to play an important role in the Anthropocene, increased efforts are crucial. Some options to advance and increase restoration efforts are explored below.

5.4 Possible Ways Forward 5.4.1 The Need for Principles and Standards Due to the lack of clarity of the legal obligation to restore, the development of principles and standards could prove very useful to complement and clarify the content of the obligation. Principles and standards can also help to qualify restoration projects as ecological restoration and make sure that these projects are done in an appropriate way. Ecological restoration principles for protected areas have been put forward by Keenleyside et al. (2012). These principles are complemented by guidelines and best practices. Standards for restoration have been developed by SER in 2016 (McDonald et al. 2016). The Standards refer and build on the principles that have been put forward by Keenleyside et al. The Standards set out six key concepts. The first is that ecological restoration practice should be based on an appropriate local native reference ecosystem, taking environmental change into account. Another key concept is that restoration seeks ‘highest and best effort’ progression towards full recovery (see above). The Standards develop a five star performance system where five-star recovery means an ecosystem is on a self-organizing trajectory to full recovery (based on an appropriate local native reference ecosystem). This is considered the ‘gold standard’ to which all ecological restoration projects should aim. Performance standards, such as the SER Standards, could prove to be very useful as guidance to decide what qualifies as ecological restoration for legal purposes (Telesetsky et al. 2017) and to guarantee that the best and highest efforts are taken to restore. Governments that are under pressure to reach restoration targets might set low standards in order to reach the policy targets or legal obligations on restoration. Unfortunately, for now, there are no legal obligations for states to actually use the principles and standards. Additional legal instruments that either refer to or incor-

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porate scientifically accepted principles and standards could fill this gap. However, as restoration science is still an evolving science, there might not be a full scientific agreement on the appropriate standards (see for example criticism on the SER Standards by Higgs et al. 2018; and response by Gann et al. 2018). Also, standards should be able to cope with regional diversity: restoration in semi-natural habitats in Europe can pose different challenges from restoration in North-America or Australia.

5.4.2 The Need for New Laws? The lack of concrete obligations and standards on ecological restoration in international law, and limited progress in meeting obligations and targets on restoration, might be addressed through additional legal instruments on restoration. This could be done at the international level, for instance, through a protocol on restoration under the Biodiversity Convention, or at the regional level, for instance through a binding directive or (non-binding) guidelines from the European Commission. The development of additional laws on restoration needs further exploration and careful consideration. Degraded ecosystems will not be helped with yet another legal instrument that is not properly implemented. If much attention goes to the development of the new law without the appropriate funding and the will to implement, this might (again) prove dead letter. It could also increase the complexity of the international regime and lead to uncertainties about the relationship with existing legal instruments. Aside from these concerns, there is a more fundamental question: is yet another legal instrument sufficient? Perhaps a more fundamental shift in law and governance is needed. Environmental lawyers are increasingly advocating a more fundamental shift in environmental law. For instance, a group of environmental lawyers established the Ecological Law & Governance Association (ELGA). Their Oslo Manifesto (2016) calls for an ecological law instead of environmental law. Ecological law internalizes the natural living conditions of human existence and makes them the basis of all law, including constitutions, human rights, property rights, corporate rights and state sovereignty. Ecological law reverses the principle of human dominance over nature, which the current iteration of environmental law tends to reinforce, to a principle of human responsibility for nature. Another initiative, the Global Pact for the Environment, has gained increased attention (see http://pactenvironment.org/). The draft pact includes a duty to restore in article 2: “Every State or international institution, every person, natural or legal, public or private, has the duty to take care of the environment. To this end, everyone contributes at their own levels to the conservation, protection and restoration of the integrity of the Earth’s ecosystem.” Another initiative calls for a Global Deal for Nature as a companion to the Paris Climate Deal to promote increased habitat protection and restoration, national- and ecoregion-scale conservation strategies, and the empowerment of indigenous peoples to protect their sovereign lands (Dinerstein et al. 2017; see also Nature Needs Half movement). The goal of such an accord would be to protect half the terrestrial realm

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by 2050 to halt the extinction crisis while sustaining human livelihoods. Similar ideas are proposed in the ‘Half Earth’ project, led by Wilson (2016), that aims to conserve half the land and the sea. In the process towards the post 2020 biodiversity framework under the Biodiversity Convention, the idea to protect and restore half of the planet has already been proposed (CBD 2019).

5.5 Conclusion Ecological restoration provides an important way to restore ecosystems to Holocenelike conditions and thus remain within a safe operating space for humanity, as defined by the planetary boundaries framework (Steffen et al. 2015). Ecological restoration can not only restore degraded ecosystems but also the lost connections between humankind and nature. Restoring nature and ecosystems can also provide humans with the many ecosystem services they depend on for their survival and well-being. Therefore, despite the challenges of successful restoration in the era of the Anthropocene, the approach could (partly) be the answer to the challenges of this new geological epoch. However, although restoration has multiple ecological, social and economic benefits (see for example De Groot et al. 2013), and we see some successes on the ground, the scale and rate and quality of restoration is currently insufficient. Further, despite the legal duty to restore in international law it is unlikely that targets and obligations on restoration will be met, thus undermining the capacity of the approach to address the impacts of global environmental change. If restoration is to become part of the solution to remain within safe planetary boundaries, serious efforts are needed to implement the restoration duties. At least, more concrete legal duties and standards for restoration are required. Possibly, this could be embedded in a new global legal initiative, such as a Global Deal for Nature, including the obligation to protect and restore half of the planet for nature.

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McDonald T, Gann GD, Jonson J, Dixon KW (2016). International standards for the practice of ecological restoration—including principles and key concept. Society for Ecological Restoration Menz M, Dixon K, Hobbs R (2013) Hurdles and opportunities for landscape-scale restoration. Science 339:526–527 Murcia C, Aronson J, Kattan GH, Moreno-Mateos D, Dixon K, Simberloff D (2014) A critique of the ‘novel ecosystem’ concept. Trends Ecol Evol 10:548–553 Oslo Manifesto (2016) From environmental law to ecological law: a call for re-framing law and governance. https://www.elga.world/oslo-manifesto/ Palmer M, Ruhl JB (2013) Aligning restoration science and the law to sustain ecological infrastructure for the future. Front Ecol Environ 9:512–519 Richardson B (2016) The emerging age of ecological restoration law. RECIEL 3:277–290 Rockström J, Steffen W, Noone K, Persson Å, Chapin III FS, Lambin E, Lenton TM, Scheffer M, Folke C, Schellnhuber HJ, Nykvist B, de Wit CA, Hughes T, van der Leeuw S, Rodhe H, Sörlin S, Snyder PK, Costanza R, Svedin U, Falkenmark M, Karlberg L, Corell RW, Fabry VJ, Hansen J, Walker B, Liverman D, Richardson K, Crutzen P, Foley J (2009) Planetary boundaries: exploring the safe operating space for humanity. Ecol Soc 14(2):32. http://www.ecologyandsociety.org/ vol14/iss2/art32/ Suding K, Higgs E, Palmer M, Baird Callicott J, Anderson CB, Baker M, Gutrich JJ, Hondula KL, LaFevor MC, Larson BMH, Randall A, Ruhl JB, Schwartz, KZS (2015) Committing to ecological restoration. Science 6235:638–640. https://doi.org/10.1126/science.aaa4216 Secretariat of the Convention on Biological Diversity (2014) Global Biodiversity Outlook 4 Simberloff D, Murcia C, Aronson J (2015) “Novel ecosystems” are a Trojan horse for conservation. They provide a license to trash nature if they provide ecosystem services. Ensia. http://ensia.com/ voices/novel-ecosystems-are-a-trojan-horse-for-conservation Society for Ecological Restoration International Science & Policy Working Group (2004) The SER International Primer on Ecological Restoration. Society for Ecological Restoration International Steffen W, Richardson K, Rockström J, Cornell SE, Fetzer I, Bennett EM, Biggs R, Carpenter SR, de Vries W, de Wit CA, Folke C, Gerten D, Heinke J, Mace GM, Persson LM, Ramanathan V, Reyers B, Sörlin S (2015) Planetary boundaries: guiding human development on a changing planet. Science 6223:1259855–1259855–10. https://doi.org/10.1126/science.1259855 Telesetsky A (2013) Ecoscapes: the future of place-based ecological restoration laws. Vt J Environ Law 4:493–548 Telesetsky A, Cliquet A, Akhtar-Khavari A (2017) Ecological restoration in international environmental law. Routledge Tittensor DP et al (2014) A mid-term analysis of progress toward international biodiversity targets. Science 6206:241–244 Trouwborst A (2015) The Habitats Directive and climate change. Is the law climate proof? In: Born CH, Cliquet A, Schoukens H, Misonne D, Van Hoorick G (eds) The Habitats Directive in its EU environmental law context: European nature’s best hope? Routledge, pp 303–324 Truitt AM, Granek EF, Duveneck MJ, Goldsmith KA, Jordan MP, Yazzie KC (2015) What is novel about novel ecosystems: managing change in an ever-changing world. Environ Manage 55:1217–1226. https://doi.org/10.1007/s00267-015-0465-5 van Andel J, Aronson J (eds) (2012). Restoration ecology: the new frontier, 2nd edn. WileyBlackwell Veldman JW, Overbeck GE, Negreiros D, Mahy G, Soizig Le Stradic G, Fernandes W, Durigan G, Buisson E, Putz FE, Bond WJ (2015) Tyranny of trees in grassy biomes. Science 347:484–485 Watson James EM, Shanahan DF, Di Marco M, Allan J, Laurance WF, Sanderson EW, Mackey B, Venter O (2016) Catastrophic declines in wilderness areas undermine global environment targets. Curr Biol 21:2929–2934. https://doi.org/10.1016/j.cub.2016.08.049 Wilson EO (2016). Half-earth. Our planet’s fight for life. Ww Norton & Co.

Chapter 6

Governance for Protected Areas “Beyond the Boundary”—A Conceptual Framework for Biodiversity Conservation in the Anthropocene Toshinori Tanaka Abstract While biodiversity enhances human resilience to the impacts of rapid global change, the capacity for protected areas to adequately contribute to biodiversity conservation is increasingly questioned. Conventional protected areas, often referred to as “fortress conservation” or the “Yellowstone model”, certainly maintain important roles, however, this is insufficient when considering the characteristics of biodiversity and the Anthropocene. The notion of protected areas should change dramatically to incorporate people living “beyond the boundary” of conventional protected areas. In those areas, complex land ownership, diverse stakeholders, overlapping laws and institutions, and consequent weak authority need to be addressed. To effectively manage “beyond the boundary” areas, the role of environmental law will need to shift from conventional “regulation and sanctioning” approaches to those that are more integrative. This paper takes Japan’s national parks and UNESCO’s Biosphere Reserves as typical “beyond the boundary” models to discuss integrative management approaches: comprehensive inclusion of stakeholders, partnerships and utilization of soft laws. Comprehensive inclusion is indispensable not only to deal with complex land ownership and overlapping legal systems, but also to complement weak authority by utilizing partner-centric approaches and soft laws. Laws can support this approach by stipulating ideas for future direction(s), integrating the fragmented policies among agencies and incentivizing collaboration. Keywords Biodiversity · Sustainability · Partnership · Soft laws · UNESCO Biosphere Reserve

6.1 Introduction: The Challenge of the Anthropocene Accelerated biodiversity loss in the Anthropocene is causing the Earth’s 6th major extinction event (Ceballos et al. 2015). The biodiversity-related planetary boundary has also been exceeded. This thus jeopardizes the safe operating space for humanT. Tanaka (B) Graduate School of Frontier Sciences, The University of Tokyo, Chiba, Japan e-mail: [email protected] © Springer Nature Singapore Pte Ltd. 2019 M. Lim (ed.), Charting Environmental Law Futures in the Anthropocene, https://doi.org/10.1007/978-981-13-9065-4_6

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ity (Rockstrom et al. 2009). While biodiversity enhances human resilience to the impacts of rapid global change, the capacity for protected areas (hereafter PAs) to adequately contribute to biodiversity conservation is increasingly questioned. Juffe-Bignoli et al. (2014) argues that “protected areas do not sufficiently cover areas of particular importance for biodiversity, and many terrestrial and marine ecoregions are still poorly represented”. McNeely (2008) also argues that “protected areas can no longer be islands of natural habitats in a sea of incompatible land uses”. This is especially the case in a world of eight billion people faced with climate change. There is therefore the urgent need to expand the scale of conservation efforts. In this regard, the Aichi Biodiversity Targets adopted at the COP 10 of the Convention of Biological Diversity in 2010 are noteworthy for its very well-known numerical goal: By 2020, at least 17 percent of terrestrial and inland water areas and 10 percent of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, are conserved through effectively and equitably managed, ecologically representative and well-connected systems of protected areas and other effective area-based conservation measures, and integrated into the wider landscape and seascape.

To achieve this target, and ultimately to stem the extinction trajectory of the Anthropocene, there is the need to integrate not only wilderness areas, but also secondary vegetation, marine, coastal, suburban and urban areas into protected areas because many endangered species and ecosystems inhabit these spaces which occur “beyond the boundary” of conventional protected areas. In Japan, for example, more than 50% of threatened species (i.e. those included on the Japanese‘Red-List of Threatened Species’ published by Ministry of the Environment) inhabit secondary vegetation (Ministry of the Environment 2010). However, it is not easy to integrate these “beyond the boundary” areas into existing PA systems. This is because these areas usually include complex land ownerships, diverse stakeholders, and overlapping legal systems. Even if these areas are successfully included within PAs, the park authority will likely face the challenge of the lack of authority and administrative resources. Many scholars agree that classical conservation models such as “fortress conservation” (Hanna et al. 2008) or the “Yellowstone model” (McNeely and Mainka 2009) are insufficient to address the challenges to biodiversity in the Anthropocene. Irregardless of how strong protections are “within the boundary” of conventional PAs, biodiversity and rapidly increasing human influence represented by climate change will disregard PA boundaries and thus limit the effectiveness of classical conservation models. The impacts of global environmental change therefore pose a new type of challenge: the governance of protected areas “beyond the boundary”. As a consequence, it is crucial to support PA managers to re-imagine frameworks and/or processes to handle complex land ownerships, various stakeholders, overlapping legal and institutional systems, and consequent weak authority represented in “beyond the boundary” model. To effectively manage “beyond the boundary” areas, the role of environmental law will need to differ from conventional “regulation and sanctioning” approaches to those that are more integrated and consultative. This paper conceptualizes a new

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approach to protected areas in the form of the “beyond the boundary” model and suggests possible governance approaches examining Japan’s national parks as a case-study focusing on comprehensive inclusion of stakeholders, partnerships and utilization of soft laws. This paper further elaborates the “beyond the boundary” model by taking UNESCO’s Biosphere Reserve as an ideal global platform to elaborate the legal and institutional aspects of the model. Finally, the paper concludes by setting out the implications of the model for environmental law in the Anthropocene.

6.2 Japan’s National Parks as a Typical “Beyond the Boundary” Model There are 34 national parks in Japan as of April 2019. These equal 5.8% of Japan’s total land area. National parks based on the Natural Parks Act are the main conservation measure in Japan (Hatakeyama 2008). However, there are issues of weak authority, lack of resources and policy fragmentation because of complex land ownership (Tanaka 2012). Japan’s national park system is known as Chiiki-sei. This is often translated as multiple-use parks or park management by zoning and regulation (Hiwasaki 2005). Unlike national parks in the United States or Canada, national parks in smaller countries like Japan and the United Kingdom largely include properties owned by private and/or other agencies. In Japan, for example, 60% of the land area of national park property is owned by the Forestry Agency while 26% is under private ownership. Local governments own a further 12.8%. The park authority (Ministry of the Environment) owns only 0.4% of the land area of national parks. There are an estimated 1.9 million inhabitants “within the boundary” of national parks in Japan as of 2010 (Iwasa 2015). There are also many purposes for land use within the national parks besides nature conservation such as agriculture, forestry, fishery and tourism development. Consequently, there exist many laws, institutions and organizations involved in the management of national parks. Tanaka (2012) argues that these overlapping laws, institutions and organizations result in fragmentation and inefficiency in decisionmaking of national park management in Japan. The Ministry of the Environment also suffers from the lack of resources and weak authority. Staff shortages and an insufficient budget create further challenges. The availabile budget and human resources to national park administrations, for example, are significantly less than those of the UK, the Republic of Korea (RoK) and the United States (see Table 6.1). The Ministry of the Environment also lacks legal authority. Hatakeyama (2008) criticizes Article 4 of the Natural Parks Act as being a ‘pro-development’ clause because it demands the park authority to reconcile conservation with public interests such as property rights, mining rights, and national land development policy when implementing the Act.

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Table 6.1 Comparison of staff and budget of National Park administrations in four countries (modified from Tanaka 2012)a Japan

UK

ROK

USA

Number of staffs

346

1400

1158

19,832

Number of National Parks

34

15

22

60

Staffs per NPb

4

200

165

800

Budget (USD/million)

98

115

157

2840

a Numbers refer to different year/source based on the data availability. Some parts are modified based

on the latest information. Staffs in Japan are largely based at the headquarters in Tokyo. There are only 97 field level officers as of 2017 b Staffs per national park are based on the representative national park in each country; Yakushima in Japan, Lake District in UK, Jirisan Mountain in ROK and Yosemite in USA

Although the national park system is the key conservation measure in Japan, issues of weak authority and lack of budget and human resources are evident. It is thus fair to say that Japan’s national parks are ‘weak’ from legal and administrative perspectives. Ironically, these shortcomings result in a de facto “beyond the boundary” protected area, albeit one which needs a governance system that reconciles the complex land ownership and diverse stakeholders by limited administrative resources. This situation has, serendipitously, enabled the development of several legal and non-legal frameworks for consensus building and collaboration among stakeholders in the national park management.

6.3 Key Factors for Successful Management of the “Beyond the Boundary” Model Japan’s national park system is characterized by complex land ownerships, diverse stakeholders, overlapping legal systems and consequent weak authority. To reconcile these disadvantages, Japan’s national park management has developed several important measures. This section overviews the key success factors for managing the “beyond the boundary” model that have been derived from the Japanese context. 1. Comprehensive inclusion of stakeholders: establishing a platform for participation To successfully implement the “beyond the boundary” model, it is essential that a framework or process to facilitate consensus building and collaboration among various stakeholders. In Japan, most national parks have a Kyougikai (a consultative/collaborative body), which includes representative stakeholders related to park management. The Kyougikai discuss issues and build consensus for the policy planned by the park authority. Although the Kyougikai often lacks legal status, it generally provides a framework for participation, raising awareness of local community and induces the collaboration from stakeholders. The park authority (branch office

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of Ministry of the Environment) or local government usually serves as the secretariat of this platform and meetings are usually held twice or thrice a year. Additional meetings are called for the sub-groups or working groups on certain issues such as trail management, eradication of invasive species, or promotion of ecotourism. Stakeholders in Japan’s national park management typically include the following: Governmental agencies: Ministry of the Environment, Forestry Agency, Prefectural governments, local municipal governments. Private stakeholders: Local and/or national level conservation NGOs, local agricultural, forestry or fishery cooperatives, local commerce and industry association, local tourism association, local eco-tour guides association, resident association, etc. Third parties: Experts, media, funding organizations, etc. There are several important legal frameworks which enable comprehensive inclusion of stakeholders. The Act for the Promotion of the Nature Restoration 2002 and the Act for the Promotion of Ecotourism 2007 both ordain the initiative to establish the Kyougikai that includes various stakeholders for consensus building and to make Comprehensive Plans for having budgetary support from the central government. Both Acts are closely related to the national park management since most projects are formed within or around national parks. Also, Ministry of the Environment has several bylaws or circular notices set by Director-General for Nature Conservation that ordains to establish Kyougikai for those cases the authority needs to have consensus from stakeholders. Cases include, for example, the designation of Utilization Regulation Zone which controls the number of visitors into certain area. A platform like Kyougikai that enables the comprehensive inclusion of stakeholders is inevitable to deal with complex land ownerships and overlapping legal systems in “beyond the boundary” model. 2. Partnership: empowerment, participation, and collaboration A partner-centric approach is also an important aspect of “beyond the boundary” conservation. The Natural Parks Act includes two partnership schemes: (1) voluntary agreements with private landowners to protect the natural scenic landscape (Article 43–48), (2) delegation of park management to national/local NGOs designating them as Park Management Organization (Article 49–54). Private landowners will benefit from the agreement on the protection of the natural landscape by having reduction on inheritance tax valuation while NGOs can have certain discretion on park management based on this partnership agreement. As of April 2019, five Park Management Organization have been certified by the Minister of the Environment. Park Management Organizations collaborate on all aspects of park management except law enforcement. Expected works by the Park Management Organizations include the followings (Ministry of the Environment 2014, the translation is directly taken from the report):

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Manage the natural landscape based on Scenic Landscape Protection Agreements Repair facilities and engage in other maintenance tasks Gather and provide information and resource materials Provide required advice and guidance for promotion of appropriate use Engage in surveys and research for promotion of appropriate use

Unlike a designated administrator system, Park Management Organizations do not receive budgetary support from the government. They do, however, have more opportunities to obtain grants from Ministry of the Environment, local governments or private foundations by having the status of Park Management Organization. Also, Japan’s national parks have several Park Volunteer schemes. The oldest volunteer scheme started in 1957 and there are around 3000 registered volunteers for two representative schemes. Although these volunteer schemes are not based on any law, these are considered as important participation opportunities that can complement the vulnerable park management. To complement weak government, partnership and participation are important keys for “beyond the boundary” model. 3. Soft laws Soft laws typically take the form of self-regulation, guidelines, MOUs, mutual consent, declarations or certification. There is growing use of soft laws in national park management in Japan. While legislative processes take a long time to be decided and the regulation costs a lot for monitoring and sanctioning. Soft law is generally flexible, less costly, and easier to build consensus among various stakeholders. Tanaka (2014) discusses the soft law approach taken in the Ogasawara islands, one of the national parks and World Natural Heritage Sites in Japan. While Ministry of the Environment did not take the initiative to address unregulated tourism on the island, the Tokyo Metropolitan Government and Ogasawara Village concluded an agreement for sustainable tourism in 2003. This strengthened the self-regulation implemented by the Village since 2001. Although there was no legislation, hence no binding force or punishment for violators, the scheme is being well managed and duly followed by tour operators (Tanaka 2014). A similar case is observed in many protected areas in Japan including Manko lake, a Ramsar wetland in Okinawa (Tanaka 2016). In the “beyond the boundary” model, legislation is often too costly and time-consuming for consensus building and implementation because of its very characteristics; complex land ownership, various stakeholders, overlapping laws and institutions. The strategic design of soft laws can work as an incremental norm to help secure conservation by establishing ad hoc consensus among stakeholders and as a basis for future legislation. In practice, these approaches (comprehensive inclusion of stakeholders, partnership/participation and soft laws) are generally taken together. i.e. soft laws are often agreed in the Kyougikai, the consultative/collaborative platform that includes various stakeholders, and implemented in the form of public-private partnership or collaboration. This approach is not necessarily new, even in conventional PA management, however, it is more essential in the “beyond the boundary” model.

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6.4 UNESCO’s Biosphere Reserve: Incorporating “People” in Protected Area This section further develops the discussion by taking UNESCO’s Biosphere Reserve to elaborate the model in global contexts because national park systems around the world are diverse and often largely differs in their historical backgrounds. Biosphere Reserves are areas comprising terrestrial, marine and coastal ecosystems designated under UNESCO’s Man and the Biosphere (MAB, hereafter) Program. MAB is an intergovernmental scientific program launched since 1971 in UNESCO which aims to establish a scientific basis for the improvement of relationships between people and their environments (UNESCO 1996). The original goals of Biosphere Reserve mainly focused on nature conservation and ecological research. However, in response to the proliferation of international policies promoting biodiversity conservation and sustainable use of natural resources, the Biosphere Reserve concept has been expanded to also serve as testing grounds for new approaches to sustainable development (Elbakidze et al. 2013). Biosphere Reserves are expected to serve three objectives; biodiversity conservation, logistical support and sustainable regional development. These objectives are implemented across three zones; the core area, buffer zone, and transition area. The transition area typically includes diverse land ownership, stakeholders and overlapping laws and institutions. Biosphere Reserves are also known as “living laboratories for sustainable development”. The World Network of 686 Biosphere Reserves in 122 countries (as of April 2019) promotes collaborative and participatory approaches to conservation and sustainable development through the active sharing of experiences at global and regional levels. Biosphere Reserves are increasingly cited in relation to sustainability, e.g. SDGs (Sustainable Development Goals) and Sustainability Science (UNESCO 2017a, b; Reed 2018). In 2017–18, UNESCO and the University of Tokyo jointly implemented a project called “A Standard Framework for Biosphere Reserve management informed by Sustainability Science”. This project largely focuses on “beyond the boundary” aspects of Biosphere Reserves because they usually incorporate diverse land ownership and stakeholders while the managers tend to have weak authority and limited administrative resources (Tanaka and Wakamatsu 2018). As emphasized in many papers including Stoll-Kleemann and Welp (2008), participatory and intersectoral approaches are main characteristics of Biosphere Reserve management and these aspects can be regarded as keys for the future of conservation in the era of Anthropocene. UNESCO’s Biosphere Reserves provide an ideal global platform for sharing the experiences of the “beyond the boundary” model which seeks to incorporate “people” in protected areas. In reflection of this, UNESCO’s MAB logo includes a shape of human at the center (Fig. 6.1).

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Fig. 6.1 Logo of UNESCO’s man and the biosphere programme

6.5 Conclusion: The Role of Environmental Law in the Anthropocene Conventional protected areas, or the “within the boundary” model certainly maintains its important role for conservation. It is, however, not enough when considering the characteristics of biodiversity and the Anthropocene. The notion of protected areas should change dramatically to incorporate “people” living “beyond the boundary” of the conventional protected areas. In those areas, complex land ownership, diverse stakeholders, overlapping laws and institutions, and consequent weak authority will be apparent. To effectively manage those “beyond the boundary” areas, the role of environmental law needs to significantly shift from conventional “regulation and sanctioning” approaches to more integrative approaches. As discussed in the case of Japan’s national parks, comprehensive inclusion of stakeholders, partnerships and utilization of soft laws will be strategic policy and legal tools for advancing the “beyond the boundary” model. Comprehensive inclusion of stakeholders is indispensable not only to deal with complex land ownership and overlapping legal systems, but also to complement weak authority through the use of partner-centric approaches and soft laws. These frameworks are expected to be flexible, cost-effective and easier to build consensus among diverse stakeholders. Laws can support this approach in many ways; by stipulating the ideas for future directions, integrating the fragmented policies among different agencies and incentivizing collaboration. National park systems around the world are diverse and largely differ in their historical backgrounds. It is thus difficult to universalize approaches. However, UNESCO’s Biosphere Reserve provides an ideal global platform to elaborate the legal and institutional aspects of the “beyond the boundary” model through its world network over 122 countries. Further studies are required from all over the world to develop and enhance this model for effective biodiversity conservation and sustainable development in the Anthropocene.

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References Ceballos G, Ehrlich PR, Barnosky AD, García A, Pringle RM, Palmer TM (2015) Accelerated modern human–induced species losses: entering the sixth mass extinction. Sci Adv 1(5):e1400253. https://doi.org/10.1126/sciadv.1400253 Elbakidze M, Hahn T, Mauerhofer V, Angelstam P, Axelsson R (2013) Legal framework for biosphere reserves as learning sites for sustainable development: a comparative analysis of Ukraine and Sweden. Ambio 42:174–187 Hanna KS, Clark DA, Slocombe DS (eds) (2008) Transforming parks and protected areas: policy and governance in a changing world. Routledge, New York Hatakeyama T (2008) Shizenhogoho Kougi (Lectures on nature conservation laws), 2nd edn. Hokkaido University Press, Sapporo (in Japanese) Hiwasaki L (2005) Toward sustainable management of National Parks in Japan: securing local community and stakeholder participation. Environ Manage 35(6):753–764 Iwasa Y (2015) Land and natural environment in the era of depopulation. National Park 736:21–22 (in Japanese) Juffe-Bignoli D, Burgess ND, Bingham H, Belle EMS, de Lima MG, Deguignet M, Bertzky B, Milam AN, Martinez-Lopez J, Lewis E, Eassom A, Wicander S, Geldmann J, van Soesbergen A, Arnell AP, O’Connor B, Park S, Shi YN, Danks FS, MacSharry B, Kingston N (2014) Protected planet report 2014. UNEP-WCMC, Cambridge McNeely JA (2008) Protected areas in a world of eight billion. GAIA 17(S1):104–106 McNeely JA, Mainka SA (2009) Conservation for a new era. IUCN, Gland Ministry of the Environment (2010) Action plan for the conservation and socio-ecological production landscape (Satochi-Satoyama). http://www.env.go.jp/nature/satoyama/pamph/En_ ActionPlan_All_ver/En_ActionPlan_All_ver.pdf. Accessed 17 Sep 2018 Ministry of the Environment (2014) Natural Park systems in Japan. https://www.env.go.jp/en/ nature/nps/park/doc/files/parksystem.pdf. Accessed 17 Sep 2018 Reed MG (2018) The contributions of UNESCO man and Biosphere Programme and biosphere reserves to the practice of sustainability science. Sustain Sci. https://doi.org/10.1007/s11625018-0603-0 Rockstrom J et al (2009) A safe operating space for humanity. Nature 461(7263):472–475 Stoll-Kleemann S, Welp M (2008) Participatory and integrated management of biosphere reserve. GAIA 17(S1):161–168 Tanaka T (2012) Japan’s National Park management without sufficient authority and resources. Hokkaido J New Glob Law Policy 17:340–369 (in Japanese) Tanaka T (2014) Implementing sustainable tourism in complex situations: a case study of Minami-jima in Ogasawara Islands. World Herit Pap Ser 38:68–75 Tanaka T (2016) The structure of decision-making and the information sharing in the national implementation of the Ramsar convention: public-private collaborative networks and local institutions. People Environ 42(1):2–16 (in Japanese) Tanaka T, Wakamatsu N (2018) Analysis of the governance structure of in Japan’s biosphere reserves: perspectives from bottom-up and multilevel characteristics. Environ Manage 61(1):155–170 UNESCO (1996) Biosphere reserves: the seville strategy and the statutory framework for the world network UNESCO (2017a) Practical guidelines to apply sustainability science frameworks UNESCO (2017b) Lessons learnt and best practices from UNESCO sustainability science demonstration sites in Southeast Asia

Part II

Planetary Order and International Collaboration

Chapter 7

The Ocean-Climate Nexus in the Unfolding Anthropocene: Addressing Environmental Challenges Through International Law and Cooperation Stephen Minas Abstract Climate change and dramatic change to ocean ecosystems are two of the leading indicators of the proposed ‘Anthropocene’ epoch. As knowledge of feedbacks between climate change and damage to ocean ecosystems has improved, the case for addressing these interrelated challenges concurrently has strengthened. This chapter begins by reviewing the relationship between climate change and the state of the ocean as explained in recent scientific publications. It proceeds from this to summarise how this ocean-climate nexus is addressed in current and developing international law, before focusing on three particular examples: first, regulation of international shipping emissions; second, management of coastal ecosystems (‘blue carbon’); and third, the current negotiation on a new treaty to protect the high seas. These three examples illustrate the diversity of regulation undertaken within a foursquare matrix of processes under the Climate Convention, or under the Law of the Sea Convention, which are based on either mandatory commitments or non-binding facilitative measures. The chapter concludes that there are further opportunities to address ocean-climate feedbacks in a targeted and timely manner, including through additional linkages between UNFCCC- and UNCLOS-based processes. Keywords UNCLOS · UNFCCC · Paris Agreement · IMO · BBNJ

7.1 Introduction: The Ocean-Climate Nexus in the Anthropocene Propelled by economic production and consumption into ‘planetary terra incognita’ (Steffen et al. 2007), the Earth system is undergoing human-induced changes so dramatic that some scientists have proposed our time as a new geological epoch—the ‘Anthropocene’. This concept expresses the unprecedented scale of human interference with natural systems, of ultimately unknowable consequence. Meanwhile, the S. Minas (B) School of Law, Peking University, Beijing, People’s Republic of China e-mail: [email protected] © Springer Nature Singapore Pte Ltd. 2019 M. Lim (ed.), Charting Environmental Law Futures in the Anthropocene, https://doi.org/10.1007/978-981-13-9065-4_7

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related concept of planetary boundaries describes the fundamental interdependence of the major environmental challenges faced by the ‘Earth system’ (Steffen et al. 2015).1 Climate change is central to this anthropogenic perturbation, interlinked with each of the other planetary boundaries, including ocean acidification (Steffen et al. 2015). As the feedback effects between climate change and the condition of the ocean become better known, the case for law and policy that concurrently deal with both climate change and marine environmental protection grows more compelling. These feedbacks are complex, and there remain limits to current understanding of the scale and nature of interactions between the two. What is known is that the link between greenhouse gas emissions and ocean acidification are placing marine ecosystems at risk; marine biodiversity depletion reduces climate change resilience; and emissions are directly caused by seaborne human activities, principally shipping. Moreover, ocean warming may itself hasten climate change, as the melting of permafrost (such as in the Arctic) results in the release of methane (a greenhouse gas some 34 times more powerful than CO2 over a 100 year period) from the seafloor, exacerbating ocean acidification and ultimately entering the atmosphere (Brown et al. 2016). The Intergovernmental Panel on Climate Change’s (IPCC) 2014 Synthesis Report stated that ‘[o]cean warming dominates the increase in energy stored in the climate system, accounting for more than 90% of the energy accumulated between 1971 and 2010’ (IPCC 2014a). Moreover, the ocean has ‘absorbed about 30% of the emitted anthropogenic CO2 , causing ocean acidification’ (IPCC 2014a). This ‘has impacts on the physiology, behaviour and population dynamics of organisms’ (IPCC 2014a). The IPCC has indicated that it is highly likely that ‘ocean acidification will increase for centuries if CO2 emissions continue. This, in turn, will strongly affect marine ecosystems’ (IPCC 2014a: SPM 2.4). The IPCC found that ‘[m]arine ecosystems, especially coral reefs and polar ecosystems, are at risk from ocean acidification’ (IPCC 2014a: 2.3.1). It identified marine biodiversity loss as a ‘key risk’ where there is a high rate of climate change (IPCC 2014a). Experts have also warned that ‘we do not know what levels of, or types of, biodiversity loss may trigger nonlinear or irreversible changes to the Earth system’ (Steffen et al. 2015). They have reported the extraordinary finding that ‘[a]verage global sea levels are currently higher than at any point within the past ~115,000 years’, with sea level rise closely following the growth in atmospheric CO2 concentration (Waters et al. 2016). While climate change exerts harmful influences on marine ecosystems, marine and especially coastal ecosystems can play an important role in mitigating climate change through the ‘blue carbon’ effect. Marine living organisms absorb over half of all the atmospheric carbon captured by living organisms. Mangroves, salt marshes, sea groves and seaweed are responsible for an estimated 50–71% of ocean sediment’s share of carbon capture, despite being equivalent in mass to only 0.05% of plant biomass ashore (Nellemann et al. 2009). Restoration and prevention of depletion of 1 Most

relevantly, Steffen and colleagues warn that the planetary boundary of ocean acidification ‘is intimately linked with one of the control variables, CO2 , for the climate change [planetary boundary]’.

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coastal blue carbon sinks therefore constitute significant opportunities for mitigating climate change and strengthening ecosystem-based adaptation effects (Nellemann et al. 2009). Conversely, unchecked biodiversity depletion will hamper marine ecosystems’ resilience to climate change. The Summary of the First Global Integrated Marine Assessment, under the Regular Process for Global Reporting and Assessment of the State of the Marine Environment, including Socio-economic Aspects, has warned: ‘Where biodiversity has been altered, the resilience of ecosystems to other impacts, including climate change, is often reduced. Thus the cumulative impacts of activities that, in the past, seemed to be sustainable are resulting in major changes to some ecosystems and in a reduction in the ecosystem services that they provide’ (Co-Chairs of the Ad Hoc Working Group of the Whole on the Regular Process for Global Reporting and Assessment of the State of the Marine Environment, 2015). Not all current or projected impacts are, or will be, gradual. Scientists have recently discovered that marine heatwaves (defined as extreme warm sea surface temperature) have dramatically increased, with heatwave days doubling between 1982 and 2016. Eighty seven per cent of marine heatwaves are ‘attributable to human-induced warming’. The same study warns: [T]his number [of heatwaves] is projected to further increase on average by a factor of 16 for global warming of 1.5 degrees Celsius relative to preindustrial levels and by a factor of 23 for global warming of 2.0 degrees Celsius… [Marine heatwaves] will become very frequent and extreme under global warming, probably pushing marine organisms and ecosystems to the limits of their resilience and even beyond, which could cause irreversible changes (Frölicher et al. 2018).

The feedbacks between the climate and the ocean are seeded with potentially disruptive legal consequences. Reflecting these intertwined challenges, there are mechanisms of international law and organization that concurrently address ocean conservation and climate change—with opportunities for more to be done. The question we face is how to use these tools in a more purposive manner to address the ocean-climate nexus directly, rather than simply hoping for climate or marine co-benefits from less targeted efforts. To examine this question, the chapter examines three discrete international processes which each have the potential to make significant contributions to this agenda: first, the regulation of international shipping emissions; second, the management of coastal ecosystems to enhance climate mitigation (‘blue carbon’); and a potential new treaty on the protection and sustainable use of biodiversity in areas of the sea beyond national jurisdiction (BBNJ). These three processes are chosen because they represent different squares of a four-square matrix of international processes relevant to the ocean-climate nexus, namely: processes under the United Nations Framework Convention on Climate Change (UNFCCC) or the United Nations Convention on the Law of the Sea (UNCLOS); and processes that impose mandatory commitments on Parties or which are more reliant on facilitation and capacity-building. As will be seen, the boundaries between these matrix squares are not always clear-cut. Moreover, there are international processes relevant to the ocean-climate nexus which are outside of this matrix, such as the Convention on Biological Diversity (as discussed below). Nevertheless,

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the UNFCCC and UNCLOS do have enduring importance as the foundational documents for international cooperation on, respectively, climate change and the ocean. The argument of this chapter is twofold. First, there is value in identifying legal instruments as pertinent to the relationship between climate change and the marine environment. This exercise will enable work to maximize the impact of current instruments and to develop and apply additional instruments while framing international legal processes that target—or have the potential to target—the ocean-climate nexus. As Scotford and Minas (2018) have noted in the context of domestic law, ‘one might want to know what different national legal efforts add up to—how they aggregate— in constituting a legal response to climate change’. This also applies to international law. Second, given the plurality of processes relevant to the ocean-climate nexus, it is necessary for States and non-Party stakeholders to utilize both processes under UNCLOS and UNFCCC and processes reliant more on mandatory commitments or on facilitation and capacity-building. The remainder of the chapter is structured as follows. The next section presents an overview of the ocean-climate nexus in international law. The subsequent sections examine each of the above-mentioned examples of international shipping emissions regulation, blue carbon and the potential BBNJ treaty. Each of these are considered in light of the question of how to address the ocean-climate nexus in a targeted way. The concluding section summarises the implications of these matters.

7.2 The Ocean-Climate Nexus in International Law The feedback mechanisms between climate change and the state of marine biodiversity have been well-recognised in a variety of UN decisions and programs. Several intergovernmental agreements and declarations acknowledge the direct link between climate change and the conservation of ocean biodiversity. These instruments thus call for action to jointly address both challenges. These agreements include the UN Framework Convention on Climate Change (UNFCCC),2 the Rio+20 ‘The Future We Want’ outcome document3 and the 2015 Addis Ababa Action Agenda of the

2 ‘All Parties, taking into account

their common but differentiated responsibilities and their specific national and regional development priorities, objectives and circumstances, shall: … (d) Promote sustainable management, and promote and cooperate in the conservation and enhancement, as appropriate, of sinks and reservoirs of all greenhouse gases not controlled by the Montreal Protocol, including … oceans’. United Nations Framework Convention on Climate Change, FCCC/INFORMAL/84, 1992, Article 4(1). 3 ‘We stress the importance of the conservation and sustainable use of the oceans and seas and of their resources for sustainable development … while at the same time protecting biodiversity and the marine environment and addressing the impacts of climate change. We therefore commit to protect, and restore, the health, productivity and resilience of oceans and marine ecosystems, and to maintain their biodiversity…’ ‘The Future We Want’, A/RES/66/288, 2012, paragraph 158.

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Third International Conference on Financing for Development.4 The 2015 UNFCCC Paris Agreement notes ‘the importance of ensuring the integrity of all ecosystems, including oceans, … when taking action to address climate change’.5 The 1982 Law of the Sea Convention, which entered force in 1994, contains provisions of significance to the response to climate change. The obligation of all States ‘to protect and preserve the marine environment’,6 and the obligation of States to undertake ‘all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source’,7 require States to respond to the negative effects of climate change on the marine environment. More specifically, States must take measures ‘necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species’.8 The institution of the exclusive economic zone, which grants each coastal State ‘sovereign rights … with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and wind’ extended two hundred nautical miles seaward of the coastal baseline,9 provides valuable legal certainty for the development of offshore renewable energy. The Convention can also play an important role in responding to climate-related disasters (Telesetsky 2018). However, the application of UNCLOS to the determination of marine jurisdiction is also challenged by the physical effects of climate change. Most notably, sea-level rise shifts the baselines from which ocean zones are calculated under the United Nations Convention on the Law of the Sea (UNCLOS) (Caron 1990), potentially disrupting existing maritime boundaries and turning islands into ‘[r]ocks which cannot sustain human habitation or economic life of their own’10 or low-tide elevations,11 with major consequences for State entitlements to maritime zones.12 Additional climate effects include the ousting of certain coastal State environmental jurisdiction, as areas of the sea are no longer covered by ice for most of the year,13 and disruption of the fish stocks regime as fish migrate and stocks are depleted (Rayfuse 2012). The overall effect is that the changing climate is having potentially significant effects on their consequences of applying UNCLOS—consequences that mostly cannot have 4 The same language as in ‘The Future We Want’ paragraph 158 is used at Draft resolution submitted

by the President of the General Assembly, Addis Ababa Action Agenda of the Third International Conference on Financing for Development, A/69/L.82, 23 July 2015, Annex, paragraph 64. 5 Paris Agreement (2015, entered force 2016), preambular recital 13. 6 UNCLOS, Art. 192. 7 Ibid, Art. 194(1). 8 Ibid, Art. 194(5). 9 Ibid, Art. 56. 10 UNCLOS, Art. 121. 11 Ibid, Art. 13. 12 For a comprehensive assessment of these challenges and potential responses, see the work of the International Law Association’s Committee on International Law and Sea Level Rise: http://www. ila-hq.org/index.php/committees. 13 UNCLOS, Art. 234.

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been anticipated by the negotiators who adopted the Convention. This is another reason for addressing explicitly the interface between UNCLOS and climate change. Other multilateral treaties and processes, although not the focus of this chapter, have also contributed to the governance of the ocean-climate nexus. These include the Convention on Biological Diversity, whose Conference of Parties has urged States to ensure that ocean fertilization (as a geoengineering measure) does not take place,14 and the Open-ended Informal Consultative Process on Oceans and the Law of the Sea, an annual review by the General Assembly of oceans law which in 2017 examined ‘The effects of climate change on oceans’.

7.3 Example 1: International Shipping Emissions The example of the regulation of international shipping emissions through the IMO indicates the diversified nature of existing international law relating to the oceanclimate nexus. This case also demonstrates the need for the interaction and alignment of multiple existing treaty regimes. Greenhouse gas emissions from international shipping accounted for an estimated 2.8% of the global total between 2007 and 2012. This could increase by between fifty percent and 250% by 2050 (Third IMO GHG Study 2014). The Subsidiary Body for Scientific and Technological Advice (SBSTA) of the UNFCCC is mandated15 to address the control of emissions from fuel used for international maritime transport, working with the International Maritime Organization (IMO).16 The Kyoto Protocol additionally provides, at Article 2.2, that Annex I Parties ‘shall pursue limitation or reduction of emissions of greenhouse gases not controlled by the Montreal Protocol from… marine bunker fuels, working through… the International Maritime Organization’. This work program has been progressed through the IMO with periodic reporting back to SBSTA. In 2011, Annex VI of the International Convention for the Prevention of Pollution of Ships (MARPOL) was amended to encompass greenhouse gas emissions. The amendments entered force in 2013, giving the IMO a mandate to regulate the energy efficiency of shipping.17 Capacity-building initiatives have followed. In 2015, funding was announced for the Global Maritime Energy Efficiency Partnerships Project

14 COP 9 Decision IX/16: Biodiversity and climate change, UNEP/CBD/COP/DEC/IX/16, 9 October 2008. 15 FCCC/CP/1995/7/Add.1, Decision 4/CP.1, paragraph 1(f) (6 June 1995). 16 For a summary of this work program, see http://unfccc.int/methods/emissions_from_intl_ transport/items/1057.php. 17 ‘Mandatory energy efficiency measures for international shipping adopted at IMO environment meeting’, Marine Environment Protection Committee (MEPC)—62nd session: 11–15 July 2011, Briefing: 42, July 15, 2011, International Maritime Organization, http://www.imo.org/ en/MediaCentre/PressBriefings/Pages/42-mepc-ghg.aspx#.VmVszXprurU. Accessed 7 December 2015.

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(GloMEEP), a joint IMO-UN Development Programme project to build developing country capacity to improve shipping energy efficiency under MARPOL.18 MARPOL energy efficiency regulation applies to internationally trading ships of 400 gross tonnage and above. All such ships must implement a Ship Energy Efficiency Management Plan (SEEMP), and all new ships above 400 GT must comply with the Energy Efficiency Design Index (EEDI), a technology-neutral energy efficiency requirement. The EEDI requires ships built in 2025 to be thirty per cent more energy efficiency than comparable ships built in 2014. Enforcement is the responsibility of the ship’s flag State, although the shipping industry has a vital role in developing and implementing relevant standards (Bodansky 2015). The IMO is currently moving from regulating growing shipping emissions to efforts to reduce emissions. In 2016 the IMO’s Marine Environment Protection Committee (MEPC) established a Working Group on the reduction of GHG emissions from international shipping. In 2018, the MEPC adopted the ‘Initial IMO Strategy on reduction of GHG emissions from ships’, which sets as a goal to ‘to peak GHG emissions from international shipping as soon as possible and to reduce the total annual GHG emissions by at least 50% by 2050 compared to 2008’.19 As this example indicates, both the MARPOL and the IMO-centred processes for its implementation have gradually been developed to more directly address shipping emissions. This is a case of UNFCCC law and oceans law (broadly conceived) interacting with a common purpose. Clearly, much remains to be done to effectively cap and then reduce shipping emissions.

7.4 Example 2: Blue Carbon In contrast to IMO treaty law and regulations concerning shipping emissions, the case of blue carbon shows an element of the ocean-climate nexus which international law has only marginally addressed. Coastal ecosystems including mangroves, saltmarshes and seagrasses both sequester and store carbon, thereby mitigating climate change, and assist in adaptation to climate change through coastal protection and other effects. The management of coastal ecosystems is the responsibility of each individual State, as they fall within the territorial sea.20 However, most States lack laws or regulations dedicated to the protection of these ecosystems (Herr et al. 2017). Some incentives for blue carbon-based mitigation and adaptation measures have been created under the UNFCCC, although they are far from comprehensive. The 18 “Funding agreed for Global Maritime Energy Efficiency Partnerships Project (GloMEEP)”, Brief-

ing: 35, 27/07/2015, International Maritime Organization, http://www.imo.org/en/MediaCentre/ PressBriefings/Pages/35-glomeep-signing.aspx. Accessed 7 December 2015. 19 Resolution MEPC.304(72), Initial IMO Strategy on Reduction of GHG Emissions from Ships, Adopted on 13 April 2018, par. 3.1. 20 UNCLOS, Art. 3.

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situation is complicated by the fact that ‘the three blue carbon systems … exist in the UNFCCC mitigation context as part of multiple definitions and categories’, lacking also an institutionalized ‘home’ in the sprawling UNFCCC process (Herr et al. 2017). The IPCC has issued guidelines for including emissions from coastal wetlands including mangrove forests, tidal marshes and seagrass meadows in national greenhouse gas inventories (IPCC 2014b: Chap. 4), following a 2010 invitation from the SBSTA.21 Mangrove afforestation and reforestation projects may generate carbon credits under the Kyoto Protocol’s Clean Development Mechanism (CDM),22 the voluntary carbon markets have also supported blue carbon projects (Herr et al. 2017). The future of the CDM and the shape of its replacement are uncertain, as UNFCCC negotiations on rules to implement Article 6 of the Paris Agreement were ongoing at the time of writing. Concerning adaptation, coastal zone and marine ecosystem projects have also been included in countries’ National Adaptation Plans and (in the case of Least Developed Countries) National Adaptation Programmes of Action.23 UNFCCC bodies also provide technical assistance and capacity-building related to blue carbon, e.g. through the Climate Technology Centre and Network.24 The Paris Agreement, which requires Parties to communicate Nationally Determined Contributions (NDCs) including mitigation targets,25 has provided fresh impetus for blue carbon measures. According to a 2016 IUCN paper, the NDCs of 28 countries refer to coastal wetlands regarding mitigation, while 59 countries have included coastal zones in the context of adaptation (Herr and Landis 2016). This means, however, that ‘only 19% of Parties with coastal wetlands ecosystems have included coastal wetlands specifically in their NDC for mitigation’ (Herr and Landis 2016). Herr and Landis recommend that Parties with coastal wetlands can capture the opportunities of blue carbon in future NDCs with more programmatic approaches, including by including coastal wetlands in national GHG inventories and addressing mangrove conservation and restoration (Herr and Landis 2016). In addition to inclusion in NDCs, there are also indications that Parties are seeking financing through the Green Climate Fund (an operating entity of the UNFCCC’s Financial Mechanism) for blue carbon projects.26 The Paris Agreement’s Article 6.4 market mechanism may also become a further opportunity to finance blue carbon projects, although 21 Report on the Subsidiary Body for Scientific and Technological Advice on its thirty-third session, held in Cancun from 30 November to 4 December 2010, FCCC/SBSTA/2010/13, paragraph 72, 1 March 2011. 22 CDM Methodology Booklet, 4.3 Methodologies for Large-Scale A/R CDM Project Activities, AR-AM0014 Afforestation and reforestation of degraded mangrove habitats, November 2015; Clean Development Mechanism (CDM), https://cdm.unfccc.int/. Accessed 5 December 2015. 23 National Adaptation Programmes of Action, Index of NAPA Projects by Sector, UNFCCC, May 2013, http://unfccc.int/files/cooperation_support/least_developed_countries_ portal/napa_priorities_database/application/pdf/napa_index_by_sector.pdf. Accessed 5 December 2015. 24 Coastal Zones, Climate Technology Centre and Network, https://www.ctc-n.org/sectors/coastalzones. Accessed 7 December 2015. 25 Paris Agreement, Art. 4.2. 26 For example, India has submitted a proposal which would include financing for conservation, restoration and effective management of blue carbon ecosystems. However, this proposal was to

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this will depend on the mechanism’s modalities which had not been adopted by the Parties at the time of writing. Beyond the UNFCCC process, several international partnerships have been established to enhance collective action on blue carbon. Through the Blue Carbon Initiative, IUCN has partnered with the Intergovernmental Oceanographic Commission of UNESCO and Conservation International to protect coastal and marine ecosystems.27 Through the Blue Forests Project, UNEP, the Global Environment Facility, IUCN and other partners are working to demonstrate the carbon co-benefits of coastal ecosystem management through projects in Ecuador, Indonesia, Madagascar and Mozambique and the United Arab Emirates.28 As these processes indicate, engagement with blue carbon by international law and organizations has been facilitative rather than prescriptive. Moreover, the current and emerging links with international law have been chiefly through the climate treaties rather than UNCLOS and broader oceans law. Given the structure of the Paris Agreement, which places Nationally Determined Contributions at the centre of mitigation efforts, much will depend on the degree to which rules concerning reporting requirements and institutions are inclusive of blue carbon, thereby incentivizing and facilitating enhanced action. Realising the potential of UNFCCC processes to encourage blue carbon conservation would seem to require a more deliberate approach to this issue than the COP has demonstrated thus far. Despite the efforts of the IUCN, other expert bodies and certain affected Parties, the blue carbon issue has yet to truly ‘go mainstream’ in the UNFCCC negotiations.

7.5 Example 3: Protecting the High Seas With the third example, we move from an existing legal framework (IMO regulation of shipping emissions), via the partial accounting for blue carbon under the climate treaties, to a current project to make new treaty law whose outcome is uncertain. In contrast to both shipping emissions and blue carbon, this process is explicitly under UNCLOS. The negative impacts of marine biodiversity depletion on climate change resilience make ocean conservation an important component of the global response to climate change. The high seas account for almost half of the planet’s surface. This vastness, alongside the permeable reality of UNCLOS-prescribed ocean zones, makes conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ) a logical focus for efforts both to mitigate climate change and to deal with climate change’s impacts on ocean ecosystems.

be considered at the GCF Board’s July 2018 meeting, at which no funding proposals or policies were approved owing to a deadlocked Board. Consideration of funding proposals – Addendum IV: Funding proposal package for FP085, Green Climate Fund, GCF/B.20/10/Add.04, 8 June 2018. 27 The Blue Carbon Initiative, http://thebluecarboninitiative.org. Accessed 7 December 2015. 28 Blue Forests, http://www.gefblueforests.com. Accessed 7 December 2015.

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In this context, the UN General Assembly’s 2015 decision to ‘develop an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction’ (BBNJ) is a significant development.29 Resolution 69/292 established a preparatory committee tasked to make recommendations to the General Assembly on the BBNJ instrument.30 In the discussions and decisions that have led to the current mandate for an instrument for biodiversity conservation in BBNJ, the effects of climate change on marine biodiversity including in BBNJ have been identified as a particular concern.31 Following submission of the Preparatory Committee’s report in 2017,32 an Intergovernmental Conference on BBNJ has convened and held its first meeting in September 2018. As the Preparatory Committee’s report does not ‘reflect consensus’, and highlights ‘divergence of views’ relating to central matters such as freedom of the high seas, marine genetic resources, area-based management tools, environmental impact assessments and capacity-building and technology transfer,33 there remains great uncertainty regarding the outcome of the Intergovernmental Conference. The current BBNJ process is the culmination of a long-running effort to address an important gap in oceans law. In consequence of the time it has taken to get to this point, the intergovernmental negotiations have been informed by unprecedented knowledge of the feedbacks between the ocean and climate change. A BBNJ instrument is likely to include both prescriptive and facilitative elements, to an extent mirroring the complexity of UNCLOS itself. Moreover, it is clear that robust provisions on matters such as area-based management tools would contribute positively to the climate agenda in addition to high seas protection. Should a BBNJ instrument be adopted and enter into force, one challenge will be developing appropriate linkages with the Paris Agreement, so that the two instruments can be implemented in a complementary and mutually reinforcing manner. The exchanges between the UNFCCC’s Technology Mechanism and the Technology Facilitation Mechanism associated with the Sustainable Development Goals may be a helpful example in this regard. 29 UN

General Assembly, Resolution 69/292, A/RES/69/292, 6 July 2015, paragraph 1. paragraph 1(a). 31 For example, in the Co-Chairs’ summary of discussions of the Working Group established by Resolution 66/231, it is recorded that ‘[s]ome delegations noted that anthropogenic threats to marine biodiversity, including as a result of climate change … had continued to increase in areas both within and beyond national jurisdiction’. A/66/119, annex, paragraph 8 (30 June 2011). Also, in Resolution 69/245 (2014), the General Assembly ‘[r]eiterat[es] its serious concern at the current and projected adverse effects of climate change and ocean acidification on the marine environment and marine biodiversity, and emphasizing the urgency of addressing these issues’; and ‘[e]xpress[es] concern that climate change continues to increase the severity and incidence of coral bleaching throughout tropical seas and weakens the ability of reefs to withstand ocean acidification, which could have serious and irreversible negative effects on marine organisms, particularly corals, as well as to withstand other pressures, including overfishing and pollution’. 32 Report of the Preparatory Committee Established by General Assembly Resolution 69/292, UN Doc. A/AC.287/2017/PC.4/2 (July 31, 2017). 33 Ibid, Section B. 30 Ibid,

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7.6 Conclusion The unprecedented changes of the ‘Anthropocene’ challenge our collective will to be genuine ‘stewards of the Earth System’ (Steffen et al. 2007). As Cormac Cullinan observed following 2012’s much-heralded Rio+20 conference, ‘[i]f we extrapolate the current trends in environmental destruction…, it is apparent that in the unlikely event of a Rio+40 meeting being convened, it is likely to be more like a wake’ (Cullinan 2013). To avoid this dismal prospect, what is absolutely key is robust and targeted implementation of existing legal instruments such as the UNCLOS and the Paris Agreement, while continuing to ratchet ambition upwards and to innovate new instruments (such as a BBNJ treaty) to address gaps. The dual challenges of protecting the ocean and preventing dangerous climate change are inextricably linked. Building on a mounting body of scientific evidence concerning feedback effects between the climate and the ocean, several instruments of international law already address both challenges. Key foundational texts, such as UNCLOS, were adopted long before the present knowledge of the ocean-climate nexus became available. A raft of current initiatives and new proposals seek to bolster global collective action. This diverse tableau of activity reveals the ocean-climate nexus to be a complex policy challenge implicating multiple ‘actors, norms and processes’ (Zumbansen 2014: 4), with no single negotiating track, treaty or international organization capable of providing a comprehensive solution. The examples discussed in this chapter have illustrated that the ocean-climate nexus is addressed by a range of international legal instruments—some focused purely on climate or on ocean matters, and others developed with at least some regard to the feedbacks between the ocean and the climate. As knowledge of these feedbacks have increased, it is only to be expected that current efforts to develop legal instruments address the ocean-climate nexus more directly. Nevertheless, the examples discussed also indicate the much more could be done to address ocean-climate feedbacks in a targeted and timely manner. To better inform climate negotiators, for example, one contribution would be for the UNFCCC COP to request its Secretariat, in consultation with the IOC and IMO, to map international legal processes relevant to the ocean-law nexus. Such a comprehensive mapping exercise is likely to reinforce the second argument of this chapter, by further demonstrating the need for both prescriptive and facilitative measures, under UNCLOS, the UNFCCC, related and other international instruments. When it comes to climate change, the process of ‘bringing new law to ocean waters’ (Caron and Scheiber 2004) must now be pursued across multiple fronts. While this diffusion of processes presents challenges of coordination, it offers opportunities for creative legal work to innovate new protections and to connect and extend existing structures (Minas 2018).

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References Bodansky D (2015) Climate change: transnational legal order or disorder? In: Halliday TC, Shaffer G (eds) Transnational legal orders. Cambridge University Press, Cambridge, p 287 Brown PJ et al (2016) Impacts and effects of ocean warming on carbon management including methane hydrates. In: Laffoley D, Baxter JM (eds) Explaining ocean warming: causes, scale, effects and consequences. Full report. IUCN, Gland, Switzerland, pp 380–84 Caron DD (1990) When law makes climate change worse: rethinking the law of baselines in light of a rising sea level. Ecol Law Q 17:621–53 Caron DD, Scheiber H (eds) (2004) Bringing new law to ocean waters. Brill Cullinan C (2013) The rule of nature’s law. In: Voigt C (ed) Rule of law for nature: new dimensions and ideas in environmental law. Cambridge University Press, Cambridge, pp 94–108 Frölicher TL, Fischer EM, Gruber N (2018) Marine heatwaves under global warming. Nature 560:360–76 Herr D, Landis E (2016) Coastal blue carbon ecosystems. In: Opportunities for nationally determined contributions. Policy brief. IUCN, TNC, Gland, Switzerland, Washington, DC, USA Herr D, von Unger M, Laffoley D, McGivern A (2017) Pathways for implementation of blue carbon Initiatives. Aquat Conserv: Mar Freshw Ecosyst 27:116–29 IPCC (2014a) Climate change 2014: synthesis report. In: Pachauri RK, Meyer LA (eds) Contribution of working groups I, II and III to the fifth assessment report of the intergovernmental panel on climate change. IPCC, Geneva, Switzerland IPCC (2014b) 2013 Supplement to the 2006 IPCC guidelines for national greenhouse gas inventories: wetlands. In: Hiraishi T, Krug T, Tanabe K, Srivastava N, Baasansuren J, Fukuda M, Troxler TG (eds). IPCC, Switzerland Letter dated 7 July 2015 from the Co-chairs of the ad hoc working group of the whole on the regular process for global reporting and assessment of the state of the marine environment, including socioeconomic aspects addressed to the president of the general assembly, summary of the first global integrated marine assessment, A/70/112, 22 July 2015 Minas S (2018) Marine technology transfer under a BBNJ treaty: a case for transnational network cooperation. AJIL Unbound 112:144–149 Nellemann C, Corcoran E, Duarte CM, Valdés L, De Young C, Fonseca L, Grimsditch G (eds) (2009) Blue carbon. A rapid response assessment. United Nations Environment Programme, GRID-Arendal. www.grida.no Rayfuse R (2012) Climate Change and the Law of the Sea. In: Rayfuse R, Scott SV (eds) International law in the Era of climate change. Edward Elgar, Cheltenham Scotford E, Stephen M (2018) Probing the hidden depths of climate law: analysing national climate change legislation. In: Review of European, comparative & international environmental law (2018) Online First Steffen W, Crutzen PJ, McNeill JR (2007) The Anthropocene: are humans now overwhelming the great forces of nature? Ambio 36:614 Steffen W, Richardson K, Rockström J, Cornell SE, Fetzer I (2015) Planetary boundaries: guiding human development on a changing planet. Science 347(6223):1259855 Telesetsky A (2018) Weathering the 21st century: how UNCLOS contributes to responses to climaterelated disaster events. In: Stephen M, Diamond HJ (eds) Stress testing the law of the sea: dispute resolution, disasters & emerging challenges, Brill Third IMO GHG Study 2014 (2015) Executive summary and final report. International Maritime Organization Waters CN, Zalasiewicz J, Summerhayes C, Barnosky AD, Poirier C (2016) The Anthropocene is functionally and stratigraphically distinct from the holocene. Science 351:aad2622 Zumbansen P (2014) Law & society and the politics of relevance: facts and field boundaries in ‘Transnational Legal Theory in Context’. NoFo 11:1–37

Chapter 8

Consequences of the Recognition of Forest Protection as a Common Concern of Humankind for the Anthropocene Maša Koviˇc Dine Abstract The chapter illustrates the consequences of recognizing forests as a ‘common concern of humankind’ for the Anthropocene. This suggestion stems from the acknowledgment that there is a need to revisit the current understanding of the concept of ‘common concern of humankind’ for the new Anthropocene epoch, especially on the example of forests. Following the initial examination of how international law defines and regulates global commons, it discusses the key international principles which facilitate recognition of forests as a global commons and presents three elements of defining the common concerns of humankind. In the new Anthropocene epoch, where human activities are so greatly affecting and altering the Earth’s structure and ecosystems, appropriate management of natural resources is crucial. Forests, often referred to as the lungs of the planet, play an important role in the Earth system and significantly affect the planet’s climate. With growing CO2 emissions, the importance of forests has become even more significant as the balancer of atmospheric gases and thus a natural tool in mitigating climate change. The chapter concludes by arguing that in the Anthropocene, more than ever, the acknowledgement of forests as a common concern of humankind is essential, as this requires focusing on the principle of multi-stakeholder cooperation. It is necessary that human activities as they relate to global commons and in particularly as they relate to forests are agreed upon and implemented by all the stakeholders. Only through such cooperation we can adopt practices that are most beneficial to the current and future generations and to the conservation of the Earth ecosystem. Keywords Forests · Common concern of humankind · Principle of multi-stakeholder cooperation · Common concern key elements · International law

M. Koviˇc Dine (B) Faculty of Law, University of Ljubljana, Ljubljana, Slovenia e-mail: [email protected] © Springer Nature Singapore Pte Ltd. 2019 M. Lim (ed.), Charting Environmental Law Futures in the Anthropocene, https://doi.org/10.1007/978-981-13-9065-4_8

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8.1 Introduction In the new Anthropocene epoch, where human activities are so greatly affecting and altering the Earth’s structure and ecosystems, our actions matter more than ever. With humanity becoming the “agent in the operation of its own life support system” (Steffen et al. 2007) appropriate management of our natural resources is crucial. Forests, often referred to as the lungs of the planet, play an important role in the Earth system and significantly affect the planet’s climate. With growing CO2 emissions, the importance of forests has become even more significant as the balancer of atmospheric gases and thus a natural tool in mitigating climate change. A study by the Canadian Forest Service has shown that global forests absorb nearly half of all the CO2 emissions from burning of oil, gas and coal (Pan et al. 2011). Forests also carry out other functions such as balancing global water regimes by intercepting rain and regulating its flow through natural hydrological systems. This averts the dehydration of soil and flooding and thus prevents soil erosion while providing the habitat for numerous species (Koviˇc Dine 2014). On the other hand, forests have since time immemorial also been an economic resource leading recently to overexploitation in some parts of the world and serious deforestation. The Food and Agriculture Organization of the United Nations recently confirmed that global forest cover has been reduced by 13 hectares per year in every year between 2000 and 2010 (FAO 2011). The exploitation of forests as a natural resource and poor management practices have significantly contributed to the establishment of the Anthropocene (Steffen et al. 2007; Waters et al. 2016). Further, due to their crucial role in regulating the Earth system, appropriate sustainable forest management practices can also be a part of the solution in the global climate change mitigation and adaptation efforts. Due to the abovementioned importance of forests there is growing recognition of forests as global commons (Brownlie 1972; Tarlock 1991; Hooker 1994; Peel 2001). This recognition brings with it the need to regulate forest management at the international level. However, such internationalization challenges traditional notions of permanent sovereignty over natural resources, which grants the states the right to freely exploit its forests (Kiss and Shelton 2007; Tarlock 1991). A solution to this conflict could be the global recognition of forest protection as a common concern of humankind. So far, only climate change, biodiversity loss and protection of intangible cultural heritage have been recognized as such by their respective conventions (in preambles of United Nations Framework Convention on Climate Change (UNFCCC), Biological Diversity (CBD) and Convention on the Safeguarding of Intangible Cultural Heritage). Hence the question arises whether forest protection could be regarded as a global common concern as well? The new Anthropocene epoch, however, calls also for the need to revisit what ‘common concern of humankind’ should encompass. An essential principle that needs special attention and respect is the principle of multi-stakeholder cooperation. It is necessary that human activities as they relate to global commons and in particularly as they relate to forests are agreed upon and implemented by all the stakeholders.

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Such cooperation forces us all to think about environmental consequences of our actions and search for better solutions. To address the research question and its consequences, the chapter will first examine how international law defines and regulates global commons. Next, key international principles which facilitate recognition of forests as a global commons will be discussed and three elements of defining the common concerns of humankind will be presented. The chapter concludes by arguing that in the Anthropocene, more than ever, the acknowledgement of forests as a common concern of humankind is essential, as this requires focusing on the principle of multi-stakeholder cooperation.

8.2 The Global Commons and International Law International law has, over time, developed several forms of global commons to appropriately address the collective response of the international community to environmental problems from the common heritage of mankind to issues deemed common concerns of humankind (Baslar 1998; Brunnée 2007). The majority of these notions (excluding common concern of humankind) cover resources that are outside the jurisdiction of any state and hence a global response to their protection, conservation and management is necessary. The concept of common heritage of mankind is recognized only for natural resources outside the jurisdiction of the states and is currently afforded only to the seabed of the high seas and the Moon (Noyes 2011–2012; Cox 2013). As common heritage of mankind these resources cannot be unilaterally exploited by states, but should rather be exploited under determined international regimes and in the interest of the international community as a whole (Egede 2014). Common concern resources are not limited to resources outside the jurisdiction of states, but in the majority of cases cover resources that are under state jurisdiction. The effects of their exploitation, however, are felt in the territories of other states (Voigt 2014). For this reason the concept of common concern is more appropriate for defining the global commons nature of forests. The management and conservation of forests is in the interest of the international community, while they grow on areas within national jurisdiction and are objects of property rights, either by individuals or the state. The concept of common concern has been proposed for transboundary environmental issues that have affected the global international community and require a global international response e.g. global environmental problems such as air pollution and the protection of the atmosphere, protection of international water courses etc. (Brunnée 1996; Kiss and Shelton 2007). The common denominator of all environmental issues recognized as common concern is that due to the human activities in the Anthropocene epoch their conservation has become in the common interest of the international community and thus the whole international community has to cooperate in their protection and conservation, as the benefits of such cooperation will be borne by all (Brunnée 2007). As human activities are at the core of the Anthropocene epoch, they have widespread and transboundary consequences. For this reason, there should be a common concern

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among us all that these activities do not further alter the environment we live in and hence a common initiative for its protection and conservation. One might question what are the commonalities between forests on the one hand and climate change, biodiversity and intangible cultural heritage on the other. While forest areas often extend across borders, they are still perceived by the majority of states as a national natural resource with management and exploitation solely regulated by the state. However, the intention of forest protection and conservation in the time of Anthropocene should be the same as that behind the conservation of biodiversity, prevention of changes in the climate and protection of intangible cultural heritage, as all contribute significantly to the changes that are at the backbone for the definition of the Anthropocene epoch. In comparison to, for example biodiversity protection, forest protection equally contributes to the maintenance of a natural equilibrium of the Earth’s ecosystem and can assist us to remain within a range of planetary boundaries (e.g. climate, biosphere integrity, freshwater). Additionally, the two conventions regulating biodiversity loss and climate change even contain measures for forest protection to a minor extent. However, this is insufficient and too narrow in scope to conserve global forests in the Anthropocene epoch and there remains a need for an international treaty regulating forest management, protection and conservation. Hence, the discussion below presents an analysis of the relevant multilateral environmental agreements regulating the common concern resources in order to identify the key elements of the common concern concept and apply them to forest protection.

8.2.1 Global Commons of Common Concern Character in Multilateral Environmental Agreements Analysis of the only three conventions that address common concern of humankind (climate change, biodiversity conservation and safeguarding intangible cultural heritage) reveals three key elements of the concept of common concern of humankind: 1. that the object of common concern be located within the territory of a state which has sovereignty over it; 2. that the conservation of the object of common concern is essential for the conservation of the global Earth’s ecosystem; and 3. the use of the object of common concern is in the interest of the international community. These three elements define the key characteristics of common concern of humankind. They are deducted from measures regulating climate change, biodiversity conservation and safeguarding intangible cultural heritage in their respective conventions and represent a common denominator for all the common concern resources. Hence, all three key elements have to be fulfilled to grant the common concern character to a natural resource.

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First, the concept of common concern of humankind protects resources that are located within the territory of a state but their conservation benefits the global international community. The atmosphere where climate changes are taking place, biodiversity and intangible cultural heritage are, regardless of their global character, essentially regulated by states on which territories they are located. Their location within the state borders defines them as resources over which the state has permanent sovereignty. The same is true for forests, they are located within the state borders under the jurisdiction of the state. Second, the concept of common concern of humankind is applicable only to the conservation of resources whose preservation is in the interest of the global international community. It applies to resources that are essential for the preservation of the global Earth’s ecosystems for future generations (Voigt 2014; Brunnée 2007). The interest submitted here is not the interest of a few states or a few private entities, but of the whole international community (Soltau 2016). With the recognition of a global interest essential for the conservation of the Earth’s ecosystem we are preventing transborder damage—damage to the global environment (Sanchez Castillo-Winckels 2016). This most importantly covers the prevention of damage that is serious and irreversible. There are two reasons that necessitate such protection: conservation of the resource for the needs of future generations from the anthropocentric perception, as well as conservation of the resource as such from the ecocentric view. Due to the abovementioned reasons and the importance of forests for the global ecosystem, forest conservation is essential for the preservation of the Earth’s environment. Third, it is not the natural resources that are the common concern of humankind, but its use such as prevention of overexploitation. As Brunneé points out, this third element focuses on environmental processes or the actions of protection of the natural resources—that is the actions that give the objects of common concern the common nature. The concept of common concern of humankind is not concerned with the ownership of the resource (Brunnée 2007; Shelton 2009). This is also evident in the texts of the analysed conventions, as they do not refer to the resource, such as biodiversity, as being in the common concern, but specifically recognize the conservation or protection of the resource as a common concern (Brunnée 2007). Even with regard to climate change, the UNFCCC preamble recognizes, that it is the change in the climate and its adverse effects that are common concern and not the climate itself. Such understanding of the concept of common concern is confirmed by the preamble of the CBD which clearly recognizes state sovereignty over the biological resources. Hence, the concept of common concern does not prevent the state from exploiting its natural resources, but only request that these resources are exploited in a way that holds the interest of the international community for their conservation in mind. That means managing the resources in a sustainable manner (Voigt 2014) and to follow the no harm principle (Sanchez Castillo-Winckels 2016). This understanding of common concern also applies to forests, as their inappropriate use i.e. deforestation causes damaging effects to the global environment. Hence it should be in all our concern to conserve the forests.

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8.2.2 Applicability of the Three Common Concern Key Elements to Forests Initially one might wonder, whether there is even a need to recognize forest protection as a common concern of humankind separate to the conservation of biodiversity? Or put differently, are forests not already considered as a common concern of humankind as established by the CBD? The author believes, the answer to this question is negative. As the third key element points out, the concept of common concern does not put the concern on the natural resource but on the natural process of its conservation or protection. There are important differences between the conservation of biological diversity and protection of forests. Forests are composed of trees that are as a species of flora protected under the CBD, however the CBD cannot be fully applicable to forests as a natural resource. Namely, the harm caused by destruction of biological diversity is reflected in the reduction and extinction of species of trees, while overexploitation of forests results also in a significant increase of greenhouse gas emissions and contributes to the changes in the climate. This latter issue is not directly addressed by the CBD. CBD focuses on conservation of biological diversity, where the term diversity is the main objective (CBD Article 1), as well as on habitat protection and genetic resources (van Asselt 2012). Climate change as a term is mentioned in the forest related decisions of the Conference of the Parties from the perspective of a contributing factor to the deformation of forest diversity (Conference of the Parties to the CBD, Ninth Meeting 2008; Jacquemont and Caparros 2002). With the recognition of forest protection as a common concern of humankind, the focus of the concern of the whole international community is the protection of forests in a much wider context especially also the climate change context and not just its diversity as a biological resource. This difference has been recognized even by nation states, which have carried separate and parallel negotiations for the biodiversity conservation regime and for forest management regime. While states have been able to reach a compromise on the measures for conservation of biodiversity, they are still discussing and negotiating an international treaty on forest management. Recognition of forest protection as a common concern of humanity might aid states in this endeavour. Applying these three key elements to forest protection confirms their international status as a common concern of humankind. Firstly, forests are a natural resource located on the territory of a state which under the principle of permanent sovereignty over natural resources exercises such sovereignty over them. Secondly, due to their significant role as CO2 sinks and other key ecosystem services, the conservation of forests is essential for the conservation of the global Earth’s ecosystem. Finally, it is in the interest of the international community that forests are managed in a sustainable way and hence conserved for future generations. As long as the states by themselves manage their forests in a sustainable manner which does not cause harm to other states or the environment beyond state jurisdiction, the international community has no interest in interfering with such management.

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8.3 Forests as a Common Concern in the Anthropocene The recognition of forest protection as a common concern of humankind is important in the Anthropocene epoch for a further reason. It establishes certain rights and obligations for states, which are crucial for the conservation of forests in times when human activity is driving unprecedented change in the Earth’s environment. These rights and obligations have to be divided into those that apply to states with forests and to those that apply to the rest of the international community. The author believes that five international environmental law principles and their corresponding rights and obligations derive from the recognition of forest protection as a common concern of humankind. These are the: (1) no harm principle, (2) principle of sustainable development and management, (3) principle of international cooperation, (4) principle of intergenerational cooperation, and (5) principle of multi-stakeholder cooperation. The section below only presents the reasoning behind the selection of these principles and does not delve into the specific obligations that derive from them. This is because different types of forests require different types of actions for their protection from which diverse specific obligations for states arise. For example the obligations arising out of the principle of multi-stakeholder cooperation are different for states with tropical forests in comparison to states with temperate forests. Mainly due to different forest management practices and relations that different stakeholders practice with their forests (property relations, indigenous practices, etc.), states have different specific obligations how to cooperate with these differing types of stakeholders. Regardless of the principle of permanent sovereignty over natural resources, state sovereignty is not absolute and is essentially limited by the no harm principle (Territorial Jurisdiction of the International Commission of the River Oder (1929); Trail Smelter (1941); Corfu Channel (1949); Kovic Dine 2012). States must manage their forests in a way so as not to cause serious harm to the environment of other states and areas beyond state jurisdiction. However, this does not mean that states have to refrain from exploiting their forests. It only requires that the states have to do so in a way that prevents damage to other states. This means that states have to take into account the special characteristics of forests that grow on their territory and consider their role in the global environment and ecosystem. Respect of the no harm principle also requires from the states to follow its procedural obligations before approving any large deforestation projects or other projects in the forests with far-reaching consequences, such as the duty to notify other states that could be affected and to cooperate with them in the environmental impact assessment procedure (Gabˇcikovo/Nagymaroš Project, Separate opinion of Judge Weeramanty 1997; Pulp Mills on the River Uruguay 2010). Additionally, as Scholtz (2013) notes, sovereignty is limited also by the obligation of the state to conserve forests for future generations—the so-called custodial sovereignty. The state has thus an obligation to manage forests in a sustainable manner even when its actions would not affect the rights of other states per se. Moreover, this also means that the state has to manage its forests in such a sustainable manner

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that is in the interest of the whole international community and with the intention to conserve the global Earth’s ecosystem, and not only in a sustainable manner that is in its own interest. At this point, it is hard to say what is the appropriate mode of sustainable forest management, as this differs from different parts of the planet, from different types of forest (boreal, tropical etc.), from current practices and heritage. Nevertheless, the obligation to manage forests in a sustainable way can be fulfilled only if the state cooperates with other states and with the international community when adopting national strategies and policies for forest management (Biermann 1996). This obligation of international cooperation is not only an obligation of the states with forests. It is an obligation for the whole international community in order to fairly divide the costs and burdens of sustainable management of forest and improve the well-being of the global society (Delbrück 2012). If we all benefit from such management, we should all contribute to it. This principle does not grant the international community the right to manage the forests of certain states by itself, but to aid the forest states in their management. This can be done through three different channels, such as (1) common cooperation in the form of exchange of information and cooperation in the process of establishment of forest management strategies and policies; (2) financial aid, technical and knowledge transfer; and (3) respect for the principle of common, but differentiated responsibilities in all it forms. As forests have covered the Earth since time immemorial, the human race has a long history of forest exploitation and management. Generations and generations of peoples have thus built a strong relationship with forests and adapted various management practices, which have both positively and negatively impacted the environment and contributed to the development of the Anthropocene epoch. The respect for intergenerational cooperation is thus crucial in forest management. It differs from the principle of international cooperation, as its focus is mainly on the generational use and management of forests as a natural resource. As Brown Weiss has pointed out, the current generation must conserve forests for the future generations in a condition that is not worse than their inherited condition. The current generation also needs to tap into the heritage of previous generations to learn from their best practices and negative experiences (Brown Weiss 1992).

8.4 Advancing Common Concern in the Anthropocene In times when human activities fundamentally affect the environment, there is the need to revisit what ‘common concern’ should encompass. The author believes that the principle of multi-stakeholder cooperation is an essential principle that needs to be respected in the Anthropocene epoch. It is necessary that human activities, particularly as they relate to common issues in general and forests in particular, are agreed upon and carried out by all stakeholders. The principle of multi-stakeholder cooperation requires cooperation of all stakeholders in decision-making and in their implementation (Bäckstrand 2006). Such cooperation can bring successful results,

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as it forces all of us to think about environmental consequences of our actions and search for better solutions. There are numerous stakeholders that can contribute to the development of best practices for a particular forest: states, forest owners, local communities, local governments, ecologists, forestry industry, non-governmental organizations, educational and research institutions, tourist and recreational sector, individual forest users, indigenous peoples etc. Ideas and solutions gathered in a multi-stakeholder discourse facilitates joint consideration of all the conflicts and benefits of certain forest management activities for the individual stakeholders, the local community and crucially the global community. The participation of all stakeholders in the management discourse is essential, as the exclusion of one group may lead to an unsuccessful forest management process and may cause damage to the local and global ecosystem. More importantly, the full disclosure and overview of forest management practices and their effects can enable the stakeholders to gain a common shared understanding and agreement on the most appropriate forest management strategy in the concrete conditions and on the forest management strategy that is the most beneficial to future generations and to the conservation of the Earth ecosystem.

8.5 Conclusion A key question related to the concept of common concern needs to be addressed. Can we grant the status of common concern of humankind to a natural resource automatically upon satisfying the above presented 3 key elements? Or do states and the international community have to confirm that such status by adopting an international treaty (Brunnée 1996)? If the answer is that the status of common concern is automatically conferred then a certain set of forest management activities can be requested from a state solely on the basis, that the protection of forests is a common concern of humankind, regardless whether there exists an international treaty. If however the answer is that common concern does not occur until bestowed by the international community then states would have to adopt an international agreement that grants the forests such status and also regulates their management. The author believes that the nature of a common concern is granted to a natural resource on the basis of its natural characteristics and the role it plays in the Earth’s ecosystem and not on the consent of the international community whether it is willing to protect a natural resource or not. As a Slovenian author Janez Vajkard Valvasor articulated as early as 1689 in his book Glory of the Duchy of Carniola: “we can count the forests as the crown of any mountain, any field, as treasures of the land and with joy intertwined benefits for the population.” (Valvasor 2009-2014) These are the natural characteristics that call for the protection of forests as a common concern of humankind. Valvasor concluded his chapter on forests expressing the need to be extremely grateful for all the forests that we have, as no value derived from felled trees compares to the value that forests

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themselves hold for the humankind: “There are not enough trees in the forests, as humans need to be grateful for them to the greatest.” (Valvasor 2009-2014)

References Bäckstrand K (2006) Multi-stakeholder partnerships for sustainable development: rethinking legitimacy, accountability and effectiveness. Eur Environ 16:290–306 Baslar K (1998) The concept of the common heritage of mankind in international law. Martinus Nijhoff Publishers, The Hague Biermann F (1996) Common concern of humankind: the emergence of a new concept of environmental law. Archiv des Völkerrecht 34(4):426–481 Brown Weiss E (1992) Intergenerational equity: a legal framework for global environmental change. In: Brown Weiss E (eds) Environmental change and international law: new challenges and dimensions (385–401). United Nations University Press, Tokyo Brownlie I (1972) International customary rules of environmental protection. Int Relat 4:240–248 Brunnée J (1996) A conceptual framework for an international forest convention: customary law and emerging principles. In: Canadian Council of International Law (eds) Global forests and international environmental law (41–77). Kluwer Law, London Brunnée J (2007) Common areas, common heritage, and common concern. In: Bodansky D, Brunnée J, Hey E (eds) The Oxford handbook of international environmental law (550–573). Oxford University Press, Oxford Conference of the Parties to the Convention on Biological Diversity, Ninth Meeting, Bonn (2008) Decision IX/5, Forest Biodiversity, UN Doc. UNEP/CBD/COP/DEC/IX/5 Corfu Channel (United Kingdom v. Albania) (1949) International Court of Justice, ICJ Report, 19 Apr 1949 Cox G (2013) Views of the forest: property law and carbon rights. Asia Pac J Environ Law 15:69–94 Delbrück J (2012) The international obligation to cooperate—an empty shell or a hard law principle of international law?—a critical look at the much debated paradigm of modern international law. In: Hestermeyer HP, König D, Matz-Lück N, Röben V, Seibert-Fohr A, Stoll P-T, Vöneky S (eds) Coexistence, cooperation and solidarity, Liber Amicorum Rüdiger Wolfrum (3–16). Martinus Nijhoff Publishers, Leiden, Boston Egede E (2014) Common heritage of mankind, Oxford bibliographies. http://www. oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0109. xml. Accessed 1 June 2017 Food and Agriculture Organization of the United Nations (FAO) (2011) Global forest resources assessment 2011: key findings, p 3. http://www.fao.org/forestry/fra2011. Accessed 20 Sept 2017 Gabˇcikovo-Nagymaroš Project (Hungary/Slovakia), ICJ Report (1997). Separate opinion of Judge Weeramanty Hooker A (1994) The international law of forests. Nat Resour J 34:823–877, 833 Jacquemont F, Caparros A (2002) The convention on biological diversity and the climate change convention 10 years after rio: towards a synergy of the two regimes? RECEIL 11(2):169–180 Kiss A, Shelton D (2007) Guide to international environmental law. Martinus Nijhoff Publishers, Leiden Koviˇc Dine M (2012) Forests: does state sovereignty hinder their protection at the international level. In: Sancin V (ed) International environmental law: contemporary concerns and challenges (109–128). GV Založba, Ljubljana Koviˇc Dine M (2014) Regulation of forest ecosystem services: Slovenian Act on forests as an example of good practices. In: Sancin V, Kovic Dine M (eds) International environmental law: contemporary concerns and challenges in 2014 (401–408). IUS Software, GV Zalozba, Ljubljana

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Noyes JE (2011–2012) The common heritage of mankind: past, present, and future. Denver J Int Law Policy 40(1–3):447–471 Pan Y, Birdsey RA, Fang J, Houghton R, Kauppi PE, Kurz WA, Phillips OL, Shvidenko A, Lewis SL, Canadell JG, Ciais P, Jackson RB, Pacala SW, David McGuire A, Piao S, Rautiainen A, Sitch S, Hayes D (2011) A large and persistent carbon sink in world’s forests. Science 333(6045):988–993 Peel J (2001) State responsibility rules and compliance with multilateral environmental obligations: some case studies of how the new rules might apply in the international environmental context. Rev Eur Community Int Environ Law (RECEIL) 10(1):82–97 Pulp Mills on the River Uruguay (Argentina v. Uruguay), International Court of Justice, ICJ Report (2010) Sanchez Castillo-Winckels N (2016) Why “Common Concern of Humankind” should return to the work of the international law commission on the atmosphere. Georg Environ Law Rev 29:131–151 Scholtz W (2013) Greening permanent sovereignty through the common concern in the climate change regime: awake custodial sovereignty! In: Ruppel OC, Roschmann C, Ruppel-Schlichting K (eds) Climate change: international law and global governance (201–214). Nomos, Baden Shelton DL (2009) Common concern of humanity. Iustum Aequum Salut 1:33–40 Soltau F (2016) Common concern of humankind. In: Gray KR, Tarasofsky R, Carlarne CP (eds) The Oxford handbook of international climate change law (202–212). Oxford University Press, Oxford Steffen W, Crutzen PJ, McNeill JR (2007) The anthropocene: are humans now overwhelming the great forces of nature? Ambio 36(8):614–621 Tarlock AD (1991) Exclusive sovereignty versus sustainable development of a shared resource: the dilemma of Latin American rainforest management. Tex Int Law J 32:37–66 Territorial Jurisdiction of the International Commission of the River Oder, Permanent Court of International Justice, PCIJ, Series A 23 (1929) Trail Smelter (United States of America v. Canada), 3 R.I.A.A.1907, 1965 (1941), 11 Mar 1941 ˇ Valvasor JV (2009–2014) Cast in slava vojvodine Kranjske. Zavod Dežela Kranjska, Ljubljana van Asselt H (2012) Managing the fragmentation of international environmental law: forests at the intersection of the climate and biodiversity regimes. Int Law Polit 44:1205–1278 Voigt C (2014) Delineating the common interest in international law. In: Benedek W, De Feyter K, Kettemann MC, Voigt C (eds) The common interests in international law (9–27). Intersentia Publishing Nv, Mortsel Waters CN, Zalasiewicz J, Summerhayes C, Barnosky AD, Poirier C, Galuszka A, Cearreta A, Edgeworth M, Ellis EC, Ellis M, Jeandel C, Leinfleder R, McNeill JR, Richter DB, Steffen W, Syvitski J, Vidas D, Wagreich M, Williams M, Zhisheng A, Grineald J, Odada E, Oreskes N, Wolfe AP (2016) The Anthropocene is functionally and stratigraphically distinct from the Holocene. Science 351(6269):137–148

Chapter 9

International Water Law in Multi-scale Governance of Shared Waters in the Anthropocene: Towards Cooperation, not “Water Wars” Remy Kinna Abstract Humanity’s alteration of Earth has resulted in the onset of the Anthropocene which brings with it severe threats to the natural environment, especially regarding freshwater resources. With existing freshwater sources increasingly scarce, degraded, and altered around the globe, competition over what limited available sources remain is mounting. Transboundary rivers, lakes and aquifers are sources of competition and disputes between states as to their use and management. Certain recent inter-state disputes have fed the popular media rhetoric of “water wars” being fought in the future. However, this overlooks recorded history and a general global trend towards international water agreements and basin institutions favouring diplomatic channels over armed conflict. Two global water conventions are now in force, but whether these are widely implemented, thereby facilitating transboundary cooperation, remains to be seen. This paper argues for a research agenda into how two global water conventions can support basin agreements and institutions to better regulate inter-state sharing over finite resources and strengthen dispute resolution mechanisms to avoid or resolve conflicts over transboundary waters in the Anthropocene. Keywords Treaty · Convention · Watercourse · Water security · Dispute resolution

9.1 The Importance of Transboundary Freshwater Resources in the Anthropocene International rivers and their extensive network of tributaries are crucial arteries carrying the lifeblood of freshwater that sustains human existence and ecosystems around the world. Their use and management are also increasingly the source of disputes between basin states. It is estimated that 263 transboundary river basins cover approximately half the Earth’s surface area (United Nations, undated). These basins are home to roughly 40% of the global population and supply over 60% of R. Kinna (B) United Nations Economic Commission for Europe, Rue de Lausanne 115, Geneva 1202, Switzerland e-mail: [email protected] © Springer Nature Singapore Pte Ltd. 2019 M. Lim (ed.), Charting Environmental Law Futures in the Anthropocene, https://doi.org/10.1007/978-981-13-9065-4_9

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the freshwater used worldwide. It is unsurprising then that there is frequent and intense competition for resources between basin states, especially given that 145 nations have part of their territory—and 21 countries are situated entirely—within an international basin. While most basins are bilateral in nature, there are also many which encompass many more riparians: worldwide, 13 basins are shared between five to eight watercourse states; five are shared between nine and 11 states; and the Danube River travels across 18 countries (United Nations, undated). Our survival and prosperity largely depends on maintaining the ecological integrity and socioeconomic productivity of these transboundary rivers and lakes. The term “Anthropocene” was initially coined to define ‘the geological epoch in which humans are the dominant actor in the global environmental system’ (Crutzen 2002, p. 23). It is estimated to have begun around approximately the year 1800, at the same time as the onset of industrialisation (Steffen et al. 2007, p. 614). Geopolitics—geographic influences on politics and power relationships in international relations—underpins many key drivers of impacts and changes in the global environmental system, particularly in regards to transboundary rivers and lakes between riparian countries. A very clear physical example of how freshwater is being impacted in the Anthropocene by geopolitics is the diversion and transfer of water resources across borders. Water-stressed states are increasingly needing to secure new, viable sources for growing populations, especially for supply to cities with growing demands due to rapid urbanization (Clarke-Sather et al. 2017, p. 2). The virtual flow of water across boundaries via the trade of food produce and electrical energy being bought and sold between states within basins and regionally also tends to be guided by geopolitical factors (Clarke-Sather et al. 2017, p. 2). At the macro-scale of inter-state relations, water cooperation is thus not simply about water management. Through this lens of understanding that there are geopolitical factors that underpin transboundary water management in the Anthropocene, we can begin to engage from a global level by examining how we can better address some of the overarching challenges to water cooperation. This chapter posits that there is significant scope for the global legal frameworks governing international watercourses to help shape the future of sustainable transboundary water management in the Anthropocene. In doing so, this piece seeks to move the current discourse of water in the 21st Century away from the rising rhetoric of “water wars” and water being weaponised by geopolitical actors. Instead, this chapter demonstrates the significant potential of water law to facilitate hydrodiplomacy between states and other multi-national actors and foster transboundary cooperation over the Earth’s increasingly scarce freshwater resources. This is achieved primarily by interrogating the current status of global legal and governance frameworks for international rivers and their role in supporting transboundary water cooperation at the regional and basin-levels. This chapter firstly highlights some of the main pressures on freshwater resources in the Anthropocene. It then interrogates how increased water scarcity and pollution have been accompanied by rising predictions of future “water wars” and why this contradicts global history of hydrodiplomacy over shared waters. Second, this chapter provides an overview of the legal framework for governing transboundary watercourses. This section focuses on the

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purpose, provisions, principles and status of two global water conventions, including how they are complementary and mutually reinforcing in both their interpretation and implementation. Finally, a research agenda is presented for investigating how the global water conventions could support more effective integration, compatibility, and adaptability (to the impacts of climate change, for example) with regional and basin-wide agreements and governance institutions for transboundary rivers and lakes.

9.2 The Rise of “Water Wars” Rhetoric During the Anthropocene Despite a Record of Hydro-diplomacy The Anthropocene has borne immense human-induced impacts on water. Global freshwater resources are arguably under more pressure than ever before. We are now witnessing a significant increase in threats to freshwater quality and quantity across the world. Despite the advancements in legal regulations and environmental compliance measures in many regions of the world, there continues to be significant pollution incidents from industrial sources, as evinced by the Vale-owned Samarco mine tailings spill disaster in Brazil in November 2015, described at the time as the nation’s worst ever environmental pollution incident (Eisenhammer 2015). Despite widespread calls for stricter controls and reforms of tailings dam safety measures, this has since been followed by another Vale-owned mine tailings spill disaster in January 2019 (Burleigh 2019). At the same time, there are the more subtle, but increasingly accumulated impacts from non-point sources of water pollution, particularly diffuse pesticide, fertilizer and livestock run-off which are contaminating rivers in China (Ivanova 2015) and the United States (Johnson 2013). Steffen et al. (2015) recognise this specific type of threat to water resources in the Anthropocene via their ‘Planetary Boundaries’ (PB) Framework. The PB framework designates nine main areas under which to delineate the thresholds for “the continued development of human societies and the maintenance of the Earth System (ES) in a resilient and accommodating state” (Steffen et al. 2015, p. 736). ‘Biochemical flows’ are one of their nine PBs, focusing mainly on the impacts of Phosphorous and Nitrogen levels on land, water and the environment. In their assessment, fertilizer application from agricultural land use causes perturbations in Nitrogen and Phosphorous cycles risks eutrophication of water systems and aquatic ecosystems (Steffen et al. 2015, pp. 740–741). Given the escalating prevalence of agricultural contamination of water sources as described above, it is no surprise then that this is noted as one of the major threats to the ‘Biochemical flows’ PB in the Anthropocene. Additionally, there has been a proliferation of large-scale infrastructure projects. These projects alter water flows, sedimentation loads and the breeding cycles of aquatic species breeding, especially fish. Most hydropower dam schemes around the world currently occur or are planned for construction, along transboundary rivers such

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as the Mekong (Goichot 2015), Brahmaputra (Ramachandran 2015), Nile (Davison 2015) and Xingu/Amazon (Fearnside 2012). Finally, global water scarcity has been escalating due to more dramatic seasonal and precipitation variability accompanied by rising temperatures from climate change, as witnessed through persistent droughts across regions including the Horn of Africa, Southern Africa, Middle East and North Africa (MENA) region, Australia, the western United States and large parts of Asia (Khan 2015; Iceland 2015). These particular elements tie into further analysis of the Steffen et al. (2015) PB Framework for the Anthropocene. Their ‘Freshwater Use’ PB is based on the consumptive use of blue water, taking into account environmental water flows required to maintain a well-functioning ecosystem state. The ‘Climate Change’ PB also encompasses these threats whereby, for example, changes in atmospheric circulation cycles have increased drought in certain regions of the world. In this regard, it is evident from a range of issues such as agricultural runoff into aquatic ecosystems and the construction of large dams and basin water transfer infrastructure that several water-related PBs are under significant threat. Moreover, these threats are ‘all part of the water geopolitics of the Anthropocene’ (Clarke-Sather et al. 2017, p. 3) and are therefore determined not only by the Earth’s biophysical dynamics and the purported PBs these elements entail, but also by political relations. Leading up to the United Nations Framework Convention on Climate Change (UNFCCC) Conference of the Parties (CoP) 21 in Paris in December 2015, much was written about the role of negotiations and any binding treaty it might produce in shaping future access to, and benefit-sharing of, global freshwater resources. Some went to the extent of saying that the outcome would ultimately determine the fate of shared waters in either making or breaking the prospect of burgeoning “water wars” involving many of the world’s transboundary basins (Evans 2015; Klare 2015; Mansharamani 2015; Waslekar 2015). Others simply conflated, incorrectly, armed conflict and increasing competition over natural resources such as water due to climate change (Livingstone 2015). Given the acute strategic geopolitical and socio-economic importance placed on increasingly scarce and degraded freshwater resources, it is no wonder then that the notion of “water wars” over transboundary rivers, lakes and aquifers is therefore on the rise (Arsenault 2012; Chellaney 2013a, b; Rousseau 2015). Much of the recent literature on hydro-politics and water conflicts focuses on investigating theories of “hydro-hegemony” and the related “real politik” in different regions of the world where basin states are constantly vying for slices of their ever smaller shared transboundary freshwater “pies” (Giordano and Wolf 2002; Zeitoun and Mirumachi 2008; Swain 2004; Zeitoun et al. 2011). Based on power asymmetries, in this regard, some academics would go as far as arguing that hegemon basin nations are actually preparing to militarise and strictly control river flows as a strategic “weapon”; the aim being to secure their supplies in the supposed likely event of any inter-state conflict (Gleick 1993; Chellaney 2013b). Undeniably, certain historic tensions over shared rivers have persisted and even escalated in recent years. In Asia, the Mekong River, which has its headwaters in China and flows down through Myanmar, Thailand, Laos, Cambodia and finally emptying into the South China Sea via Vietnam has seen rising tensions between states

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over large-scale hydropower development on its mainstream and tributaries (Swain 2004; Fawthrop 2014). Similarly, an expansive hydropower dam scheme upstream on the Brahmaputra River, which also begins in China and runs down into India and Bangladesh, is progressively straining already fractious Sino-Indian state relations (Swain 2004; Krishnan 2015). In the Middle East and Northern Africa (MENA) region, the Tigris-Euphrates River originating in Turkey and passing through Syria and Iraq which has long been at the centre of deeply entrenched border disputes are further entangled with civil/international conflicts and humanitarian crises, but also intensifying divisions on downstream access to declining flows compounded by upstream hydropower and diversion dams (Swain 2004; Al Jabbari et al. 2015). Claims over access to diminishing water supplies in the River Jordan shared between Jordan, Israel and Palestine has also long been contested along territorial lines (Swain 2004; Schwartzstein 2014). Finally, a famous source of riparian contestation is the Nile River, the longest in the world shared by ten countries (Swain 2004). Recent hydropower projects upstream, most notably the Grand Ethiopian Renaissance Dam, have led to heated statements by officials from both Egypt and Ethiopia (Aman 2015); some verging on the threat of armed invasion (Al Jazeera 2015). In-turn, popular discourse is that “water wars” will be inevitable, especially via media commentary on such disputes as drama sells (Ferguson 2015; Specter 2015). In all of the above cases, armed conflict or military action over water has not occurred despite years of ongoing predictions (Starr 1991; Smith 1999; Provost 2010). Conflict is also unlikely to occur because such analysis oversimplifies the complex issues at play in disputes over transboundary watercourses (Newton 2015). It also overlooks the continuing role of international water law, specifically regional, basin and subbasin agreements, in bringing states together to cooperate in order to try to prevent, ameliorate or ultimately resolve conflicts (Holmatov et al. 2015; Magsig 2011; Swain 2001; Wolf 1998). While history shows us that conflicts over freshwater are not a new phenomenon—the last war over water was fought in 2500 BC—the past has ultimately demonstrated that shared water is more so a catalyst for cooperation than conflict (Wolf 1998, 2002). This is in no small part due to international water law, especially basin agreements, underpinning transboundary water cooperation. Past research on the role of international water law in resolving water conflicts was mainly empirical and focused specifically on transboundary river agreements (Wolf 1998; Giordano and Wolf 2002). More recently, this basic analysis has deepened in scope to investigate what kinds of cooperative arrangements are fostered; how these arrangements manifest in international water law (Leb 2013); how effective cooperative arrangements are in resolving conflicts over shared waters (Leb 2013) as well as the different types of “soft” and “hard” law approaches to cooperative basin arrangements (Boer et al. 2015). At the same time, scholarship has deepened and broadened in scale to include the role of sub-basin agreements in basin cooperation (Holmatov et al. 2015) as well as notions of ‘regional common concern’ providing a normative framework for international law to foster water security (Magsig 2011). To date, however, no existing literature analyses the separate and collective potential roles of two global water conventions in force on strengthening existing/future transboundary water cooperation and dispute resolution mechanisms at multiple scales

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(sub-basin, basin, regional) of international water law. Hence, this chapter deliberately seeks to address the lacunae in existing research by setting out the main reasons why two global water conventions could assist in addressing existing and future challenges to transboundary water governance in the Anthropocene.

9.3 Global Conventions in Force Offering Legal Foundations for Cooperation and Dispute Settlement “Hydro-diplomacy” and inter-state cooperation have overwhelmingly prevailed in the face of even the most protracted geo-political tensions and bitter disputes over freshwater. This has been demonstrated as far back as the agreement which resolved that last recorded “water war” in 2500 BC between the city-states of Umma and Lagash in what is now the Tigris-Euphrates river basin (Wolf 2002, p. 5). A large corpus of river treaties has since emerged, predominantly in the form of bilateral and multilateral agreements between basin states. Wolf’s “World Atlas of Freshwater Agreements” identified 3,600 transboundary watercourse treaties agreed between 805 AD and 1984 (2002, p. 6). In the last 50 years there were “only 37 acute disputes involving violence, compared to 150 treaties that have been signed” (Wolf 2002, p. 7). In essence, river treaties exist because governments value binding agreements as they provide improved predictability and transparency in state behaviour for sharing transboundary water. More and more, these treaties include the stated aim and inherent international legal principle of cooperation between riparians at their core. While basin treaties constitute the basis of international law pertaining to transboundary watercourses, including cooperative and dispute resolution mechanisms, general rules and principles have evolved beyond basin-specific treaty practice to incorporate different scales. Given the vital role played throughout history of international water law, particularly basin treaties, in not only promoting transboundary water cooperation but also abating chronic bilateral, multilateral and regional geo-political tensions and disagreements over shared rivers and lakes, it seems pertinent to research the potential future role of global agreements in filling gaps and reinforcing basin treaties. Hence, a crucial niche has opened up for closely examining the role of having two global conventions in force and how their ratification and mutually reinforcing implementation could supplement existing and future transboundary river and lake agreements at sub-basin, basin and regional levels. The central idea is to bridge the divide between current water security and hydro-politics research to global framework mechanisms for transboundary cooperation and dispute resolution in international water law which were predominantly viewed through the lenses of bilateral, multilateral and regional treaties. As one proponent of “water wars” has asserted, averting them, “demands rulesbased cooperation, water sharing and dispute-settlement mechanisms. However, there is still no international water law in force, and most of the regional water

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agreements are toothless, lacking monitoring and enforcement rules and provisions formally dividing water among users” (Chellaney 2013a). In this regard, entry into force of the UN Convention on the Law of the Non-navigational Uses of International Watercourses (UNWC) in 2014 and the global opening1 of the United Nations Economic Commission for Europe (UNECE) Convention on the Protection and Use of Transboundary Watercourses and International Lakes (“Water Convention”) in 2013 has subsequently led to renewed calls for widespread accession to, and implementation of, both Conventions. The two global water conventions—as the complementary and mutually reinforcing global framework—can thus provide much needed legal foundations for cooperation and dispute resolution to some existing river basin agreements where crucial identifiable governance gaps exist (Kinna 2015).

9.4 Watercourses Convention As the most authoritative text of international water law for governing transboundary rivers, the UNWC codifies all commonly-accepted existing and emerging international customary law principles and procedures. Developed and negotiated over 40 a year period, it was adopted by the UN General Assembly in 1997 and entered into force on 17 August 2014, when Vietnam became the 35th nation acceding to it (Salman 2015). As a worldwide framework instrument, the UNWC explicitly aims to “supplement, facilitate, and sustain transboundary water cooperation at all levels” (Loures et al. 2009). With its stated Preamble to “ensure the utilisation, development, conservation, management and protection of international watercourses and the promotion of the optimal and sustainable utilisation thereof for present and future generations”, the UNWC text is a global legal baseline for states sharing rivers and lakes. The fundamental feature of the UNWC is detailed yet flexible procedures setting out: institutional and systems-based cooperation in good faith between watercourse states; critical factors for determining equitable and reasonable utilisation of shared river resources; processes of prior notification and consultation for planned measures such as dams including requisite available data and timeframes; and a choice of sequential dispute resolution mechanisms, including third party adjudication. In its dispute resolution procedures, parties are obligated to follow a logical sequence of steps: resolve disputes peacefully, in good faith; jointly seek good 1 The

UNECE Water Convention was originally negotiated as a regional instrument and was only open to accession from UNECE member states, comprising 56 countries located in the European Union (EU), non-EU Western Europe, South-East Europe, Eastern Europe, the Caucasus, Central Asia and North America. Given the global aspirations of the Convention to share it expertise with other basin regions around the world and promote transboundary water cooperation in the process, amendments to the Convention were adopted that entered into force on 6 February 2013 which now allows any state from around the world, not only UNECE member states, to become a party to the Convention. Senegal and Chad are the first non-UNECE states to have already acceded to the Convention.

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offices, or request third party mediation and conciliation, or make use of a river basin institution. If after six months of negotiations the issue is not resolved, parties must submit to independent third party fact-finding commission, which delivers a report with recommendations; and parties can submit at any time to International Court of Justice (ICJ) or arbitration. The ICJ has further endorsed the UNWC as a reflection of the existing status of international water law in two separate matters over transboundary rivers—the “Hungarian Dams” and “Pulp Mills on the River Uruguay”—despite none of the states who were involved in those disputes having ratified it (Salman 2015, p. 10). Hence, the ICJ indicated it considers the UNWC as generally binding on all riparian disputes. The UNWC thus forms a global legal foundation for cooperation and dispute resolution at all scales.

9.5 Water Convention The Water Convention was originally developed as a regional framework agreement to govern and facilitate international cooperation on the many transboundary rivers shared across Europe and Central Asia. Adopted in 1992 and entering into force in 1996, over more than a 20 year period it has established itself as a renowned instrument for transboundary water cooperation (Tanzi et al. 2015). As with the UNWC, the Water Convention comprises a three-pillar normative structure: duty of due diligence to prevent, control and reduce significant transboundary harm; equitable and reasonable utilisation; and the principle of cooperation in good faith. At the regional, basin, sub-basin and national scales, complementary legal aspects between the Water Convention and other transboundary water agreements have broadly been identified as ranging from: inter-governmental negotiations in formulating basin-wide water policies that are synergistic with regional as well as national laws; to, regional assistance with operational and technical capacity regarding implementation of water laws at the national level (Wouters and Vinogradov 2003, p. 56). In 2003, the Water Convention parties adopted an amendment allowing accession to it by UN member states outside the UNECE region. This amendment entered into force on 6 February 2013. Research on having both the UNWC and Water Convention in force at the global level has determined that there is overall legal complementarity between these two instruments (Tanzi 2014). Moreover, both instruments are generally mutually reinforcing whereby based on their overwhelming similarities and harmonising differences, this provides “a strong justification for ensuring that the conventions are promoted and implemented jointly—as a ‘package’” (Rieu-Clarke and Kinna 2014, p. 22). The next section brings together both the Water Convention and the UNWC into a focused research agenda for supporting future cooperation over transboundary water resources in the Anthropocene. I make the case that scope clearly exists to further investigate how, through their widespread accession and implementation by riparian states, these global water conventions can collectively support regional, basin and

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sub-basin agreements and institutions in order to better regulate competition over water, strengthen dispute resolution mechanisms and ultimately avoid or resolve conflicts into the future.

9.6 Conclusion The rhetoric of “water wars” is invariably intended to stoke alarmism and produce compelling media content. Nonetheless, the rise of this discourse does raise the spectre of how we can ensure cooperation and effective management in the Anthropocene regarding shared freshwater resources in an increasingly water scarce world. At the same time, we have reached a landmark era in the evolution of international water law. For the first time in history, international watercourses are now regulated by not only one but two over-arching framework conventions operating at the global level to govern shared rivers and lakes. Both texts codify existing and emerging customary law principles and processes for transboundary water cooperation. Nevertheless, critical gaps exist between these basic legal foundations and basinlevel treaty practice. Both conventions explicitly support existing and future river basin agreements. They aim to support basin treaties by functioning as a basic template and filling the gaps where geographic and/or legal coverage is lacking (Litke and Rieu-Clarke 2015). This is especially pertinent because even where basin agreements exist, they often lack certain accepted principles or procedures of international water law, or do not count all basin states as parties. Wolf’s research demonstrated that 158 of the world’s 263 international basins lack any type of cooperative management framework; and of the 106 basins covered by agreements, approximately two-thirds do not include all basin states (2002, p. 7). Although such statistics are quite simplistic, they clearly demonstrate basin-level treaties are often either largely lacking or have inadequate legal provisions and/or a basin-wide scope. In practical terms therefore, most transboundary arrangements do not contain the requisite tools or have gaps to foster long-term, holistic water management, such as process-based cooperation and dispute resolution mechanisms. Disagreements and disputes between nations over the world’s increasingly scarce and degraded freshwater resources will undoubtedly persist well into the future. Moreover, it is the co-riparians who will ultimately determine how to manage the use of their transboundary rivers and lakes, as well as resolving disputes within and between them. Nevertheless, with two global water conventions in force for the first time, we must also seek to identify and hopefully learn about ongoing methods to improve and strengthen cooperative and dispute settlement processes at sub-basin, basin and regional levels. This chapter demonstrates that there is significant potential for hydro-diplomacy between states and other multi-national actors to achieve greater stability and more effective cooperation over the Earth’s increasingly scarce shared freshwater resources. The various environmental challenges of the Anthropocene outlined above mean that hydro-diplomacy is imperative to avoid transgressing the

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water-related PBs, specifically that regarding freshwater resources. Notwithstanding the uncertainties of future global environmental change, the unprecedented entry into force of the two global water conventions provides distinct reason for optimism in supporting multi-scale water governance frameworks to prevent and/or resolve disputes over contested transboundary waters. Taking into account these factors and based on documented historical trends, there is still very real hope of moving the prevailing Anthropocene discourse and practice on shared freshwater resources closer towards water cooperation rather than “water wars”. Disclaimer This publication was completed prior to joining the United Nations, hence this authorship was not done in any official capacity. The views expressed herein are those of the author(s) and do not necessarily reflect the views of the United Nations.

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Chapter 10

Rising China and Antarctic Futures in the Anthropocene Nengye Liu

Abstract This chapter examines the question: what will the future of Antarctica look like with a rising China? It first briefly sets out the international legal regime that governs the Antarctic. Next, possible futures of the Antarctic Treaty System (ATS) are examined in the context of China’s rise. The ATS has generally been praised as a success for maintaining peace and security in the Antarctic. Questions have, however, been raised in recent years because no significant new agreement has been concluded under the ATS since the adoption of the Madrid Protocol in 1991. Due to the challenges posed to the Antarctic environment in the Anthropocene, the resilience and the future of the ATS are under increased scrutiny. The paper points out that 2048 and 2052 are critical time points for the future of the ATS. These dates are respectively when the Madrid Protocol’s Mining Ban could potentially be reviewed; and when the duration of the Ross Sea Marine Protected Area comes to an end. The chapter then reflects on recent Chinese activities in the Antarctic as well as China’s Antarctic law and policy to determine China’s possible moves in Antarctica, as well its potential impact on the ATS in next 30–50 years. China appears to have taken a two-fold approach in Antarctic governance—while China is generally supportive of the ATS, China is also keen to make its mark in shaping future development of the ATS in a manner that promotes China’s interests. Keywords China · Antarctica · Southern Ocean

10.1 Introduction Environmental change is now a dominant characteristic in the Antarctic—a region that faces significant challenges from climate change and globalization (Stephens and VanderZwaag 2014). The Antarctic marine environment is now being degraded through the introduction of alien species and pollution from shipping, fishing, and a mix of anthropogenic activities (Aronson et al. 2011). Chown et al., indicate that consequences of regional warming, ocean acidification, and changes in sea-ice distribuN. Liu (B) Adelaide Law School, University of Adelaide, Adelaide, Australia e-mail: [email protected] © Springer Nature Singapore Pte Ltd. 2019 M. Lim (ed.), Charting Environmental Law Futures in the Anthropocene, https://doi.org/10.1007/978-981-13-9065-4_10

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tion are posing immediate conservation threats to species, ecosystems, and resources around the Antarctic margin (Chown et al. 2012). Moreover, in the long run, growing global population and climate change may escalate pressure for resources extraction in Antarctica. If these trends continue, this will likely result in a gloomy future for the Antarctic environment (Rintoul et al. 2018). For centuries, it has been European colonial expansion and industrial revolutions which have played a prominent role in transforming the world’s regions and peoples (Wolf 1982). Today, after decades of rapid growth, China has become an economic powerhouse and an increasingly influential global player. China is now the world’s second largest economy (World Bank 2017); third largest ship-owner by deadweight tonnage (UNCTAD 2018); and the largest producer of marine capture fisheries (FAO 2018). Will China’s economic growth exacerbate or ameliorate the challenges of the Anthropocene? This chapter aims to examine this in the Antarctic context. Specifically, what will the future of Antarctica look like with a rising China? To answer this question, this Chapter first briefly sets out the international legal regime which governs the Antarctic. Next, possible futures of the Antarctic Treaty System (ATS) are examined in the context of China’s rise. The chapter reflects on recent Chinese activities in the Antarctic as well as China’s Antarctic law and policy to determine which future for Antarctica is the most plausible.

10.2 International Law in Antarctica Human activities in Antarctica are governed by global norms and regimes, such as the United Nations Convention on the Law of the Sea (UNCLOS) and the Convention on Biological Diversity (CBD). Antarctic governance is also unique because of the Antarctic Treaty System (ATS). During the Cold War, the United States successfully persuaded seven claimant States (Australia, Argentina, Chile, France, Norway, New Zealand and United Kingdom) as well as the Soviet Union to establish the Antarctic Treaty. The Antarctic Treaty devotes Antarctica to peace and science. Over the years, the ATS has developed to comprise the 1959 Antarctic Treaty (AT), the 1972 Convention on the Conservation of Antarctic Seals (CCAS), the 1980 Convention for the Conservation of Antarctic Marine Living Resources (CAMLR Convention), the 1991 Environmental Protocol to the Antarctic Treaty (Madrid Protocol), and the measures in effect under these instruments. In particular, the Madrid Protocol bans mining in Antarctica indefinitely. The CAMLR Convention, through the Commission for Conservation of Antarctic Marine Living Resources (CCAMLR) collectively manages fisheries in the Southern Ocean.

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10.3 The Rise of China and Antarctic Futures 10.3.1 Antarctic Futures Bai et al., argue that as a concept, the Anthropocene’s societal significance “lies in how it can be used to explore and guide attitudes, choices, decisions and actions that will reverberate far into future” (Bai et al. 2016). Vidas et al., similarly point out that international law will have to evolve because of the Anthropocene brings fundamental change to the context within which international law operates (Vidas et al. 2015). Although the ATS has generally been praised as a success for maintaining peace and security in the Antarctic, questions have been raised in recent years because no significant new agreement has been concluded under the ATS since the adoption of the Madrid Protocol in 1991. In the epoch of the Anthropocene, which includes human-induced climatic change, the resilience and future of the ATS is becoming a key point of debate among scholars (Liggett et al. 2017). For example, Davis examines the durability of the ATS and positively concludes that it is durable, flexible and responsive to tackle global challenges. However, some aspects of the ATS deserve attention to ensure its continued success (Davis 2014). Brooks et al. (2016), for example, lament the decline of CCAMLR’s science-based management in the Southern Ocean. They express concern that political rather than scientific issues have taken centre stage in decision-making. Further, Brady, depicts China as a “Polar Great Power” and believes that China’s growing strength at the poles will be a gamechanger that could shift the global balance of power in significant and unexpected ways (Brady 2017). There are two time points that are of critical importance for the future of the ATS. The first is the year 2048. The Madrid Protocol provides that: If, after the expiration of 50 years from the date of entry into force of this Protocol, any of the Antarctic Treaty Consultative Parties so requests by a communication addressed to the Depositary, a conference shall be held as soon as practicable to review the operation of this Protocol (Article 25).

The Madrid Protocol entered into force in 1998. From 2048 onwards, any Antarctic Treaty Consultative Party, inducing China, is entitled to request a review conference of the Madrid Protocol. Though legally almost impossible, this conference could at least have the potential to discuss whether the mining ban should be lifted. Secondly, 2052 is another important year, which signifies the end of the duration of the Ross Sea Region MPA. The ATS has moved towards a more precautionary approach in recent years. A number of marine protected areas (MPAs) were proposed to CCAMLR over the past decade (Liu and Brooks 2018). The United Kingdom proposed the first high sea marine protected areas around the South Orkney Islands, which were established in 2009 (CCAMLR 2009). The United States and New Zealand’s joint MPA proposal in the Ross Sea Region was adopted in 2016 and entered into force in 2017 (CCAMLR 2016). It is provided by CCMALR Conservation Measure 91-05 that:

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If the Commission does not reach consensus to reaffirm or modify this MPA, or adopt a new MPA at its meeting in 2052, taking into account the results of reviews conducted in accordance with paragraph 18, this conservation measure shall expire at the end of the 2051/52 fishing season. (Para. 20, Conservation Measure 91-05)

Once again, because the decision-making process of CCAMLR is based on consensus, as a contracting party of the CAMLR Convention, if China opposes the extension of the Ross Sea MPA, the area under protection will expire in 2052. China was a quiet follower in the ATS for many years, and has only recently become relatively vocal. This is a natural reflection of the expansion of the Chinese economy. The trajectory of Chinese practice is examined below to shed light on China’s possible moves in Antarctica, as well its potential impact on the ATS in next 30–50 years.

10.3.2 China’s Expansion in Antarctica During the so-called heroic age of Antarctic exploration (late nineteenth and early twentieth centuries), Anglo-Saxon explorers were on a race to the South Pole. In contrast, China was struggling through a civil war and foreign invasions. The world has no doubt changed with a rising China in the Polar Regions. Since 1984, Chinese scientific activities have gradually expanded to all parts of the Antarctic continent and adjacent waters. For example, in 2017–2018, during the 34th Antarctic expedition, China conducted a comprehensive marine survey in the Amundsen Sea for the first time (CCTV 2018). Through a five year “Xue Long Tan Ji/Snow Dragon Exploring the Poles” project between 2016 and 2020, China has been upgrading its infrastructure for Polar Science. In 2018, China began building its fifth Antarctic Research Station. This station can be inhabited year-round and is located on Inexpressible Island in Terra Nova Bay in the Ross Sea (Xinhua 2018a). China launched its second icebreaker—Xue Long MV/2 in September 2018 (Maritime Executive 2018). This further underlines China’s strong scientific interests and capacities in Antarctica. Meanwhile, China, an industrialized power, has become more and more interested in the resource-rich continent. As stated by Chinese President Xi Jinping, the guiding principles of China’s Antarctic activities are “Understand, Protect, and Use” (China Ministry of Foreign Affairs 2014). Supported by a strong scientific capacity, China is increasing its commercial activities, such as fisheries and tourism in Antarctic waters. The China Ministry of Agriculture and Rural Affairs has confirmed that seven new krill fishing vessels have been approved to be built in the near future (China Fisheries Daily 2019). There is no doubt that Chinese activities will continue to expand in Antarctica, alongside a growing economy. This raises overfishing and environmental concerns. For example, in 2013, the Chinese factory fishing vessel Kai Xin, caught fire and sank off the Antarctic Peninsula (The Australian 2013). It however must be pointed out that due to technical constraints and low profit of krill products, Chinese krill fishing in Antarctica is at a low level. Chinese krill fishing began in 2009, reached a climax of 54,303 tonnes in 2014 (CCAMLR 2015) and has been in decline since 2015.

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10.4 China’s Antarctic Law and Policy The basic texts of the UNCLOS were negotiated between 1973 and 1982, while the Antarctic Treaty was adopted in 1958. At that time, China had closed its borders to the world. Internal chaos raged during ‘Mao’s Cultural Revolution (1966–1976). China was marginal in negotiations of the UNCLOS, and was not involved in the establishment of the Antarctic Treaty. Chinese diplomatic practices were largely romantic: attacking the hegemony of the two superpowers—the Soviet Union and the United States, rather than pragmatic. China ratified the UNCLOS in 1996, acceded to the Antarctic Treaty in 1983 and obtained Consultative status in 1985. China also became a contracting party of the CAMLR Convention (2007) and Madrid Protocol (1998). China has been supportive of the ATS and the UNCLOS. This is reaffirmed in China’s Antarctic Activities, the White Paper published by the Chinese Government during the 40th Antarctic Treaty Consultative Meeting (ATCM) in Beijing. The White Paper states that: China has been firmly safeguarding the principles of the Antarctic Treaty by protecting Antarctic environment, facilitating peaceful use of Antarctica, advocating scientific studies, and promoting international cooperation, in an effort to contribute to the growth of human knowledge, progress of social civilization and sustainable development.

Since the 40th ATCM, China has adopted a range of legislation to regulate Chinese citizens and their activities in Antarctica. These include Rules for Data Management of Polar Expeditions (State Oceanic Administration 2018a), Rules for Environmental Protection and Antarctic Activities (State Oceanic Administration 2018b), Rules for Visiting Chinese Antarctic Stations (State Oceanic Administration 2018c) and Rules for Environmental Impact Assessment of Scientific Activities in Antarctica (State Oceanic Administration 2017a, b). Furthermore, China is now drafting an Antarctic Law, which is at higher level than Rules in the domestic system, to enhance implementation of its China’s obligation under the ATS (National People’s Congress 2018). The above are all evidence of China’s commitments to support the ATS. At the same time, however, in the White Paper, China declares that: China has great willingness to provide more effective public products and services for the international governance of Antarctica to move towards a more equitable and reasonable orientation, in an effort to structure the Antarctic ‘Community of Human Destiny’.

It therefore can be said that China has taken a two-fold approach in Antarctic governance: China generally supports the ATS, but wants to shape it with its own ideas. This two-fold approach is reflected in Chinese diplomatic practice. A special meeting “Our Antarctica: Protection and Utilisation” was held by the China Ministry of Foreign Affairs in Beijing during the 40th ATCM. There Vice-Minister of Foreign Affairs Mr Zhang Yesui stated: the relationship between the protection and utilisation of Antarctica in three aspects: (1) enhanced protection is the prerequisite for peaceful utilization of the Antarctica; (2) rational utilisation is a natural part of harnessing the value of the Antarctica; (3) a balanced approach; should be the basic idea of the international governance of Antarctica. (Chair’s Summary of the Special Meeting 2017)

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Chinese attitudes towards the Southern Ocean MPAs fall into this two-fold approach as well. Apart from above mentioned South Orkney MPA and Ross Sea MPA, there are three MPA proposals under negotiations within CCAMLR: the East Antarctic MPAs proposed by Australia and the European Union (EU), the Weddell Sea MPAs proposed by the EU, and Western Antarctic Peninsula and the Southern Scotia Arc MPAs proposed by Argentina and Chile. China is not completely against Antarctic MPAs. This may reflect the first pillar of China’s balanced approach in Antarctic Governance that protection is the prerequisite for utilization. Nevertheless, China’s position towards Antarctic MPA proposals is one of reluctantance. When it comes to the Ross Sea MPA, though being supportive, China has insisted that the MPA has a limited duration of 35 years, with multiple zones to accommodate China’s potential commercial fishing interests (General Protection/No-Take Zone, Krill Research Zone and Special Research Zone). Meanwhile, China is concerned about three ongoing MPA proposals. This showcases the second pillar of China’s balanced approach— rational use. China believes that CCAMLR is successful in fisheries management and there is no need to establish any further no-take MPAs. Ironically, while some alarmists believe China will eventually overturn the ATS (Brady 2017), China in turn views the process of establishing Southern Ocean MPAs as changing the status quo (Liu 2019). Within China, there are various interests when it comes to Antarctic futures. Scientists naturally want more funding from the Government to conduct research. Rational use could be used as a convincing argument to attract research funding. The Ministry of Foreign Affairs is more concerned about maintaining the current ATS, which is seen as part of the world order that China has been integrated into. The Chinese Fisheries Agency is more active in pursuing distant water fishing in the Polar Regions as it could provide a possible solution to keep jobs for fishermen from China’s polluted coastal waters. Different intersecting interests are driving China’s behavior under the ATS. This, in turn, influences China’s interpretation of a “right” balance between use and protection in the Antarctic.

10.5 Conclusion From current Chinese practice it is difficult to fully predict whether China would vote against the extension of Ross Sea MPA in 2052 or initiate a review conference of the Madrid Protocol so as to lift the mining ban. In any case, a Good Anthropocene (Bennett 2016) and a sustainable future of the Antarctica would also be in China’s interest. Chinese President Xi Jinping has been advocating the vision of “Community with Shared Future for Mankind” (Xinhua 2018b) as the guiding principle of Chinese diplomacy. This includes being a responsible power to collaboratively protect the global environment and combat climate change. Moreover, though a player with increasing importance in Antarctic governance, the environmental future of Antarctica depends not only on China but the international community as a whole. It is almost unthinkable, and perhaps not feasible, that China would leave the rest of the international community, abandon the ATS and start drilling and fishing without the consent of the international community.

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References Aronson RB, Thatje S, McClintock JB, Hughes KA (2011) Anthropogenic impacts on marine ecosystems in Antarctica. Ann N Y Acad Sci 1223(1):82–107 ATCM (2017) Chair’s summary of the special meeting “Our Antarctica: Protection and Utilisation” Bai et al (2016) Plausible and desirable futures in the anthropocene: a new research agenda. Glob Environ Change 39:352 Bennett EM (2016) Bright spots: seeds of a good anthropocene. Front Ecol Environ 14(8):441–448 Brady AM (2017) China as a polar great power. Cambridge University Press, Cambridge Brooks CM et al (2016) Science-based management in decline in the Southern Ocean. Science 354(6309):185–187 CCAMLR (2015) Krill—biology, ecology and fishing. https://www.ccamlr.org/en/fisheries/krill-% E2%80%93-biology-ecology-and-fishing. Accessed 27 Jan 2019 CCTV (2018) China conducts First Marine Survey in Amundsen Sea. http://english.cctv.com/2018/ 03/07/PHOAPZHSCr04KCeVigyudDQq180307.shtml. Accessed 22 Jan 2019 China Fisheries Daily (2019) Ministry of agriculture and rural affairs effectively combat illegal distant water fishing, 28 Jan 2019. http://szb.farmer.com.cn/yyb/html/2019-01/28/nw.D110000yyb_ 20190128_2-01.htm?div=-1. Accessed 3 Feb 2019 (in Chinese) China Ministry of Foreign Affairs (2014) Xin Jinping visits Chinese and Australian Antarctic scientific researchers and inspects Chinese research vessel “Snow Dragon” (2014, November 18). https://www.fmprc.gov.cn/mfa_eng/topics_665678/ xjpzxcxesgjtldrdjcfhdadlyxxlfjjxgsfwbttpyjjdgldrhw/t1212943.shtml. Accessed 23 Jan 2019 Chown SL et al (2012) Challenges to the future conservation of the Antarctic. Science 337(6091):158–159 CCAMLR, Conservation Measure 91-03 (2009). Protection of the South Orkney Islands Southern Shelf CCAMLR, Conservation Measure 91-05 (2016) Ross sea region marine protected area Davis R (2014) The durability of the ‘Antarctic Model’ and Southern Ocean governance. In: Stephens T, VanderZwaag D (eds) Polar governance in an era of environmental change. Edward Elgar, Cheltenham FAO (2018) The state of world fisheries and aquaculture, meeting sustainable development goals. FAO, Rome, p 9 Liggett D, Frame B, Gilbert N, Morgan F (2017) Is it all going south? Four future scenarios for Antarctica. Polar Rec 53(5):459–478 Liu N (2019) The rise of China and the Antarctic treaty system. Aust J Marit Ocean Aff 11(2) (forthcoming) Liu N, Brooks C (2018) China’s changing positions towards marine protected areas in the southern ocean: implications for future Antarctic governance. Marine Policy 94:189–195 Maritime Executive (2018) China launches Icebreaker Xuelong 2. https://www.maritime-executive. com/article/china-launches-icebreaker-xuelong-2. Accessed 22 Jan 2019 National People’s Congress of P. R. China (2018) Legislation planning of the 13th standing committee of the National People’s Congress (2018, September 10). http://www.npc.gov.cn/npc/xinwen/ 2018-09/10/content_2061041.htm Accessed 1 Feb 2019 (in Chinese) Rintoul SR et al (2018) Choosing the future of Antarctica. Nature 558:233–241 State Oceanic Administration of P. R. China (2017a). White paper: China’s Antarctic activities State Oceanic Administration of P. R. China (2017b). Rules for environmental impact assessment of scientific activities in Antarctica. http://f.mlr.gov.cn/201807/t20180709_2074145.html. Accessed 1 Feb 2019 (in Chinese) State Oceanic Administration of P. R. China (2018a) Rules for data management of Polar expeditions. http://f.mlr.gov.cn/201807/t20180709_2073215.html. Accessed 1 Feb 2019 (in Chinese) State Oceanic Administration of P. R. China (2018b). Rules for environmental protection and Antarctic activities. http://f.mlr.gov.cn/201807/t20180709_2073791.html. Accessed 1 Feb 2019 (in Chinese)

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State Oceanic Administration of P. R. China (2018c). Rules for visiting Chinese Antarctic stations. http://f.mlr.gov.cn/201807/t20180709_2073614.html. Accessed 1 Feb 2019 (in Chinese) Stephens T, VanderZwaag D (eds) (2014) Polar governance in an era of environmental change. Edward Elgar, Cheltenham The Australian (2013) Burned Chinese ship sinks in Antarctic. http://www.theaustralian.com. au/news/latest-news/burned-chinese-ship-sinks-in-antarctic/story-fn3dxix6-1226626785203. Accessed 10 Jan 2016 United Nations Conference on Trade and Development (2018) Review of Maritime Transport 2018. UNCTAD, Geneva, p 30 Vidas D et al (2015) International law for the anthropocene? Shifting perspectives in regulation of the oceans, environment and genetic resources. Anthropocene 9:1–13 Wolf E (1982) Europe and the world without history. University of California Press, Berkeley World Bank (2017) Gross Domestic Product 2017. World Bank, Washington Xinhua (2018a) China’s 5th Antarctic research station to begin construction, 17 Jan 2018 http:// www.xinhuanet.com/english/2018-01/17/c_136902144.htm. Accessed 22 Jan 2019 Xinhua (2018b) China keywords: community with shared future for mankind, 24 Jan 2018. http:// www.xinhuanet.com/english/2018-01/24/c_136921370.htm. Accessed 3 Feb 2019

Chapter 11

The International Environmental Court—A Necessary Institution for Sustainable Planetary Governance in the Anthropocene Alexander M. SoIntsev Abstract The institutional and regulatory transformation of international environmental law is essential to effectively respond to the challenges of the Anthropocene. Taking into account the necessity of innovative responses to global environmental change, this chapter champions the establishment of the International Environmental Court. The chapter emphasizes that the creation of the International Environmental Court needs to be implemented within the framework of the United Nations Sustainable Development Goals (SDGs), which were also produced and will be implemented in the Anthropocene. The creation of a new judicial institution at the international level will contribute to the fight against fragmentation in international law. This will in turn contribute to the holistic global governance that is needed for effective management of the interconnected planetary-level environmental concerns of the Anthropocene. Keywords International environmental court · SDGs · Human rights treaty bodies · Climate change · Right to access to justice · ICJ · ITLOS

11.1 Introduction Natural scientists are demonstrating that we live in a fundamentally new time— the Anthropocene epoch. As Jefferies et al. (2018) point out, the Anthropocene and the rapid environmental change which accompany it “pose significant descriptive and normative challenges for international environmental governance”. It is therefore important for us, international lawyers, to understand what transformations are needed in international law. For addressing the large-scale environmental changes, systemic reform at the institutional and regulatory levels is needed, to avoid

A. M. SoIntsev (B) Russian Federation, Moscow, Russia e-mail: [email protected]; [email protected] Deputy Head of the Department of International Law, Peoples’ Friendship University of Russia (RUDN University), Moscow, Russia © Springer Nature Singapore Pte Ltd. 2019 M. Lim (ed.), Charting Environmental Law Futures in the Anthropocene, https://doi.org/10.1007/978-981-13-9065-4_11

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fragmentation of existing international law and the threat to the existence of the rule of law (Biermann et al. 2012). The transformation of international environmental law as a branch of international public law is also extremely important. Young (2017) has pondered the question of the types of governance tools that are needed to address the challenges of the Anthropocene. He speaks frankly, emphasising that we do not need small adjustments in the international system. Instead, conscious, innovative and ground-breaking solutions are needed. The onset of the Anthropocene epoch as a global phenomenon requires changes in the normative and institutional parts of international environmental law. Thus, in the institutional part of international environmental law, in addition to the creation of the World Environmental Organization (Oberthiir and Gehring 2005), a special International Environmental Court will be required. The creation of the specialized international court will positively influence the behavior of actors in the international arena. It will contribute to the development of environmental discourse in international relations while strengthening good governance. This in turn enhances public participation, transparency and accountability within international institutions thus expanding opportunities to address the novel challenges of the Anthropocene. This chapter commences with consideration of why institutional reform in international environmental law regarding the establishment of the International Environmental Court is needed in the Anthropocene epoch. Then it is argued that existing international courts and quasi-judicial bodies (human rights treaty bodies, the Aarhus Committee) do not allow for the most effective resolution of international environmental disputes. Moreover, establishment of an international environmental court will help achieve Goal 16 of the Sustainable Development Goals, adopted by all 193 UN Member States. Finally, it is emphasized that a new kind of international environmental dispute related to climate change should be specifically taken into account in the Statute of the International Environmental Court.

11.2 The Importance of an International Environmental Court for Global Governance in the Anthropocene Kotzé (2016) supports the creation of the International Environmental Court. He also links the establishment of the Court to the creation of a specialized international environmental organization (Kotzé 2016). This paper supports this approach as well as the idea of adopting a global environmental agreement (or Global Pact for the Environment1 ), that will unify the current fragmented international environmental law and help fill the gaps in the rules laid out in treaties so as to better safeguard the environment for future generations. 1 Resolution

adopted by the General Assembly on 10 May 2018, 72/277 “Towards a Global Pact for the Environment”. http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/72/277. Accessed 11 February 2019. UN Secretary-General report, ‘Gaps in International Environmental Law and Environment-Related Instruments: Towards a Global Pact for the Environment’ (A/73/419). https://undocs.org/A/73/419. Accessed 11 February 2019.

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Hey (2016) notes that “the fragmented nature of the international legal system has facilitated the advent of the Anthropocene”. It may not be so difficult to create the International Environmental Court as it is to integrate it into the existing fragmented system of international courts and tribunals. The search for ways to overcome the existing fragmentation leads us to the need to establish the International Environmental Court, which can relieve the existing international courts and help strengthen law enforcement. The proliferation of legal standards and instruments has not significantly improved the state of the global environment. This underscores the need for a major reform of international environmental law. This reform should address, in particular, the effectiveness of existing mechanisms for resolution of international environmental disputes. Today there are about 50 different international judicial and quasi-judicial institutions (non-compliance procedure, the UN human rights treaty bodies) involved in resolution of international environmental disputes. Among them, there are a number of bodies which have been specially adapted for the resolution of international environmental disputes. These include the International Court of Justice (ICJ) and the International Tribunal for the Law of the Sea (ITLOS), where special chambers to resolve environmental disputes were created in 1993 (it was closed in 2006) and 2002 respectively. The Permanent Court of Arbitration also adopted special Rules in 2002 (the 2002 PCA Optional Rules for Arbitration/Conciliation of Disputes Relating to Natural Resources and the Environment). In 1994, the International Court of Environmental Arbitration and Conciliation was created in the form of an international non-governmental organization. This body was soon closed while having limited impact on environmental problems. Despite the considerable number of judicial and quasi-judicial institutions competent to deal with international environmental disputes, since the 1980s the question of the establishment of the International Environmental Court has been standing on the environmental agenda of the international community. Since then, there have been many international conferences on this topic (including the 2012 “Rio+20”). The key arguments in support of the establishment of the International Environmental Court are as follows. Firstly, international environmental law is a very specific branch of international law, so judges should be experts in the field of environment. Secondly, the right to access international environmental justice should belong not only to the States (as in ICJ and ITLOS) but also to the international intergovernmental and non-governmental organizations as well as individuals. Furthermore, settlement of international environmental disputes requires special procedural rules that address the question of scientific expertise. Opponents of the creation of the International Environmental Court suggest that the further proliferation of international judicial institutions will lead to deepening fragmentation of international environmental law. Meanwhile, it is also argued that existing institutions of international justice can settle international environmental disputes quite well. A further challenge for the Court is one of determining jurisdiction. Environmental issues are integrated into transport, trade and other international issues, such as the protection of human rights. For example, should the debate on

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trade in greenhouse gases considered in the Dispute Settlement Body of the World Trade Organization (WTO) in accordance with the provisions of the General Agreement on Tariffs and Trade (GATT) or in the International Environment Court in accordance with the 2015 Paris Agreement under the United Nations Framework Convention on Climate Change (UNFCCC)? Another example is related to the case of the crime of ecocide: should it be considered by the International Criminal Court or the International Environmental Court? Analysis of the positive and negative aspects of the establishment of the International Environmental Court ultimately demonstrates that the benefits outweigh the challenges. There is no need to close the existing courts, while the new International Environmental Court will take on a substantial part of international environmental disputes. After all, the establishment of the International Criminal Court did not stop the emergence of new ad hoc criminal tribunals. Or various existing international economic courts do not effectively resolve investment disputes, this has led to calls to establish an International Investment Court (Roberts 2017). International courts appear as objective demands of the international community, and we can help make them more efficient and legitimate, and criticize them, if they do not become efficient and legitimate.

11.3 An International Environmental Court as the Appropriate Mechanism to Achieve the Sustainable Development Goals One of the biggest problems facing international law in the Anthropocene is the timely incorporation of scientific knowledge into existing laws and policies. One of the ways to achieve this is through principles, goals, and programs that are directly based on scientific knowledge. Even if these principles, goals and programs are fixed in soft law, they can, nevertheless, significantly influence the development of international legal relations. Young supports goal setting and benchmarking as a means for coordinating a range of actors to achieve long-term strategic aims in a strategic and systematic manner (Young 2017). The Sustainable Development Goals (SDGs)2 provide a clear example of the recommended shift in global governance. The aim of the SDGs is to control the behavior of subjects of international legal relations in accordance with established clear priorities in the allocation of time and resources, as well as to intensify efforts to achieve these goals. The Sustainable Development Goals, adopted by all 193 UN Member States, aim to “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at

2 Resolution

adopted by the General Assembly 70/1. 25 September 2015. Transforming our world: the 2030 Agenda for Sustainable Development. www.un.org/ga/search/view_doc.asp?symbol=A/ RES/70/1&Lang=E. Accessed 11 February 2019.

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all levels”(Goal 16).3 This Goal certainly reinforces principle 10 of the Rio Declaration, which recognizes sustainable development is only achievable through access to efficient, accountable and democratic institutions. In addition, Targets 16.3, 16.6, 16.7, 16.8, 16.10 and 16a respectively aim: to promote the rule of law and ensure equal access to justice for all, to develop accountable and transparent institutions; to ensure participatory and representative decision making; to broaden the participation of developing countries in the institutions of global governance, to ensure public access to information and to strengthen relevant national institutions for building capacity at all levels. It is extremely important to achieve Goal 16 to increase the level of environmental protection, improve the system of peaceful settlement of environmental disputes, improve the efficiency of environmental human rights protection mechanisms and maintain the concept rule of law. The SDGs should therefore be used as the mechanism to demonstrate to States the necessity of the International Environmental Court in the Anthropocene epoch. Thus, we have a mechanism, whereby states and other stakeholders will report on implementation at the UN during 15 years (2016–2030). This mechanism is extremely important in the Anthropocene, when strategic longterm planning turns out to be much in demand. The annual report on the promotion of implementation of the idea of establishing and operating the International Environmental Court as the implementation of Goal 16 will certainly help in this matter.

11.4 An International Environmental Court as a Challenge to Existing System of Environmental Dispute Resolution The creation of the International Environmental Court gives us an opportunity to review and make the appropriate changes to dispute resolution clauses in international environmental agreements. The International Environmental Court would either become a structural unit of the UN, or have a relationship with the UN, by analogy with the International Criminal Court. The abovementioned proposed Global Pact for the Environment should, for example, include in a clause on the settlement of disputes a statement as to the compulsory jurisdiction of the Court. It is also necessary to prescribe the jurisdiction of the Court in such a way as to avoid further institutional fragmentation. As a preliminary matter, there is a need to decide the issue of jurisdiction with the discussion of all possible competing jurisdictions of international judicial institutions. Half of the judiciary should be composed of the general international law experts and other half of the experts on environmental law (both international and national). This problem is also in the ICJ, which missed an opportunity to indicate a real 3 Resolution

adopted by the General Assembly 70/1. 25 September 2015. Transforming our world: the 2030 Agenda for Sustainable Development. www.un.org/ga/search/view_doc.asp?symbol=A/ RES/70/1&Lang=E. Accessed 11 February 2019.

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willingness to show its environmental credentials. For example, in last environmental case the ICJ did not consult experts when assessing the environmental damage.4 To avoid the overloading of the Court it is necessary to reform current systems of access to environmental justice at the national and regional level (i.e. the European human rights system, African human rights system and Inter-American human rights system). It should be pointed out that the use of domestic remedies for reparation of transboundary environmental harm is possible and appropriate under certain conditions: first, if it is provided by the relevant international agreement; secondly, in situations where is the transnational environmental damage affects countries with the same legal and administrative systems, and, thirdly, when the damage is minor and does not concern the vital interests of the State. Moreover, Kotzé (2016) stresses that we need a greater measure of scientific and technical specialization to deal with the comprehensive range of Earth system changes. In the Anthropocene epoch, when making court decisions, expert examination becomes more important than ever, the procedure of which should be detailed in the Rules of Procedure of the proposed International Environmental Court. Nowadays, some States have special environmental courts (Sweden, Australia, etc.). It is important to develop this characteristic at the international level. It is also necessary to emphasize the significance of analyzing the practice of these courts for distribution in those countries where there is no such specialized courts. There were only a few specialized environmental dispute resolution bodies before the beginning of the environmental movement of the 1970s. Of late there has been a significant upswing in the number of specialized courts. In 2009, there were only 350 worldwide. Today, more than 1200 national environmental courts have been established and still are functioning in 44 States (Pring and Pring 2016). The majority of these courts have appeared in the last ten years (for example, in Bolivia, Belgium, China, England, Paraguay, the Philippines, South Africa, Thailand) (Pring and Pring 2016). At the same time, one should not forget about the role of existing mechanisms in the settlement of international environmental disputes. This particularly so in relation to quasi-judicial bodies which have great potential for long-term settlement of disputes and to strengthen environmental cooperation among States. Accordingly, in today’s realities it is necessary not only to improve and efforts to establish judicial mechanisms, but also to take steps to improve the efficiency of quasi-judicial mechanisms. The practice of compliance of procedures shows their high efficiency. It seems that the rich experience developed by these mechanisms of international control, can be used for creating the International Environmental Court. At the present time, the UN human rights treaty bodies system is also rapidly developing. The UN Committee on Economic, Social and Cultural Rights has been provided recently by the opportunity to examine individual or collective complaints, so we already have the relevant decisions. At the same time, today there is a transformation in the work of the UN human rights treaty bodies regarding the challenges 4 See:

Certain activities carried out by Nicaragua in the border area (Costa Rica v. Nicaragua). Compensation Owed by the Republic of Nicaragua to the Republic of Costa Rica. https://www.icjcij.org/en/case/150. International Court of Justice, February 2, 2018. Accessed 11 February 2019.

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of the Anthropocene epoch in the context of climate change. As Humphreys (2018) points out, “textual analysis of the two main UN Covenants on human rights (the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights) shows their potential ability to cope with existing and future phenomena associated with anthropogenic global climate change”. Even on 8 October 2018, this year the Committee on Economic, Social and Cultural Rights releases statement on climate change and the Covenant “Climate change and the International Covenant on Economic, Social and Cultural Rights”.5 While climate change is not explicitly mentioned in any of the key United Nations human rights legal instruments, the human rights treaty bodies have increasingly noted concerns regarding the protection of internationally recognized human rights and provided recommendations to States through the State reporting procedure. States have also increasingly used this procedure to report on national policies and actions designed to secure and promote human rights in the context of climate change as well as to highlight how climate-induced impacts raise new challenges for the protection of rights.6 The protection of environmental human rights should be continued at the regional level (the European Court of Human Rights, the Inter-American Court on Human Rights and the Commission on Human Rights and the African Court of Human and Peoples’ Rights and the Commission on Human and Peoples’ Rights). Moreover, it is necessary for all States to ratify the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, because of rather efficient Compliance Committee. We should use this opportunity to consider the 1998 Aarhus Convention as a global multilateral environmental agreement as it is open for signature to non-members States of the UNECE. The new 2018 Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean was recently adopted.7 So there should be soon created the Committee to Support Implementation and Compliance (Article 18 of the Convention). The International Environmental Court will have to consider the cases of violation of environmental rights but only in extreme cases of gross violation of environmental rights. The International Environmental Court should not be a Court of Appeal. It should be ordinary international court as the International Tribunal for the Law of the Sea (ITLOS), based on international treaty, which States shall ratify as soon as possible. We should support the idea of that “… the international environmental 5 Statement

of the Committee on Economic, Social and Cultural Rights. Climate change and the International Covenant on Economic, Social and Cultural Rights. 2018. Geneva. https://www.ohchr. org/ru/NewsEvents/Pages/DisplayNews.aspx?NewsID=23691&LangID=E. Accessed 10 October 2018. 6 States’ Obligations under the Convention on the Rights of the Child in the Context of Climate Change. http://www.ciel.org/wp-content/uploads/2018/01/HRTBs-synthesis-report.pdf. Accessed 10 September 2018. 7 Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean. 2018. https://repositorio.cepal.org/bitstream/handle/ 11362/43583/1/S1800428_en.pdf. Accessed 10 September 2018.

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court could be taken to add credibility to the body of international environmental law and perhaps give impetus to its development as a distinct legal discipline” (Pedersen 2012). At the present stage of the development of international environmental law, the creation of the International Environmental Court will enhance the role of international environmental law in the system of international law in general, as well as strengthen the responsibility of not only States, but also of international organizations for causing environmental damages. Today there exists no international widely accepted court in which a State or individual may bring a case against international organizations, which causes damage to the environment. This needs to be rectified if we are to adequately address the complex interconnected issues of global environmental change and the uncertainty of the Anthropocene.

11.5 Conclusion In conclusion, I would like to emphasize that global climate change is one of the essential features of the Anthropocene epoch. At this time, the discourse on climate justice is only developing. There are several decisions at the national level (USA, Canada, Pakistan, Nigeria, Australia, New Zealand and the Netherlands)8 and in the Inter-American system for the protection of human rights (Watt-Cloutier 2005) concerning climate change issue. As it is known, it was not possible to reach a quorum on the request of an advisory opinion in the International Court of Justice on the obligations of States in the field of climate change (Voigt 2016; Bodansky 2017). Sands (2016) notes that the International Tribunal for the Law of the Sea could issue an advisory opinion on the marine environment and climate change. It is important to include in the establishing treaty of the International Environmental Court the provisions on the climate change. In this case, an important role will be played by expertise, since in such disputes it is not easy to prove precisely the responsibility of a particular State for specific greenhouse gas emissions.

8 E.g.,

Massachusetts v. EPA, 549 U.S. 497 (2007); Am. Elec. Power Co. v. Connecticut, 564 U.S. 410 (2011); Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012); Juliana v. United States, No. 6:15-cv-1517-TC, 2016 WL 183903 (D. Or. Jan. 14, 2016); Friends of the Earth v. Canada, [2008] F.C. 1183 (Can. Fed. Ct.); Leghari v Fed’n of Pakistan, W.P. No. 25501/2015 (Lahore High Ct.) (Sept. 4, 2015) (Pak.); Gbemre v. Shell Petroleum Dev. Co. Nigeria [2005] AFR. HUM. RTS. L. REP. 151 (F.H.C. Nigeria); Greenpeace New Zealand v. Northland Reg’l Council [2006] NZHC CIV 2006- 404-004617 at [57] per Williams J. (N.Z.); Genesis Power Ltd. v. Franklin Dist. Council [2005] NZRMA 541 (N.Z.).); RB-Den Haag [Hague Dist. Ct.] 24 juni 2015, ECLI:NL:RBDHA:2015:7196 (Stichting Urgenda/Nederlanden) [Urgenda Found. v. Netherlands] (Neth.).

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International law is the most important basis for the State’s behavior in the modern globalizing world, and it must respond to the present challenges expediently. As Kotzé highlights: “the new globalized reality of the Anthropocene entails that environmental lawyers will have to revisit orthodox, and often archaic, social constructs that have been designed as institutional responses to less complicated or complex regulatory issues that existed during the Holocene epoch, which in turn might require a wholesale review of current regulatory interventions leading to proposals to reconceptualise and redesign our law and governance constructs” (Kotzé 2014). Realization of the Anthropocene as a challenge involves institutional changes in the international legal system and, first of all, in international environmental law through creation of the International Environmental Court. In this chapter, I have shown that the existing international courts (ICJ, ITLOS, PCA) and quasi-judicial bodies (human rights treaty bodies, the Aarhus Committee) do not effectively resolve all types of international environmental disputes, including climate change disputes. Indeed, international environmental law is a very specific branch of international law, therefore judges must be experts in the field of the environment. Moreover, the right of access to international environmental justice should be given not only to states, but also to international governmental and non-governmental organizations, as well as individuals. At the same time, resolution of international environmental disputes requires development of special procedural rules for methods of environmental damage calculation. For these reasons, the creation of the International Environmental Court will go a long way towards achieving the planetary governance we need for sustainable and just futures in the Anthropocene.

References Biermann F et al (2012) Navigating the anthropocene: improving earth system governance. Science 335:1306–1307 Bodansky D (2017) The role of the international court of justice in addressing climate change: some preliminary reflections. Arizona State Law 49(2):689 Hey E (2016) International law and the anthropocene, ESIL Reflection 5:10. http://esil-sedi.eu/wpcontent/uploads/2016/11/ESIL-Reflection-Ellen-Hey.pdf. Accessed 10 July 2018 Humphreys S (2018) The human rights covenants in the light of anthropogenic climate change. In: Moeckli D, Keller H (eds) The human rights covenants: their past, present, and future. Oxford University Press, Oxford, UK. https://doi.org/10.1093/oso/9780198825890.003.0012 Jefferies C, Seck S, Stephens T (2018) International law, innovation, and environmental change in the anthropocene. In: Craik N, Jefferies C, Seck S, Stephens T (eds) Global environmental change and innovation in international law. Cambridge University Press, Cambridge, pp 1–18 Kotzé LJ (2014) Rethinking global environmental law and governance in the anthropocene. J Energy Nat Resour Law 32:121–156, 144 Kotzé LJ (2016) Global environmental constitutionalism in the anthropocene. Hart Publishing

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Oberthiir S, Gehring T (2005) Reforming international environmental governance: an institutional perspective on proposals for a world environment organization. In: Biermann F, Bauer S (eds) A world environment organization. solution or threat for effective international environmental governance? Ashgate, pp 205–234 Pedersen OW (2012) Analysis an international environmental court and international legalism. J Environ Law 24:3. https://doi.org/10.1093/jel/eqs022 Pring G, Pring C (2016) Environmental courts & tribunals: a guide for policy makers. UNEP, Nairobi Roberts A (2017) Would a multilateral investment court be biased? Shifting to a treaty party framework of analysis. https://www.ejiltalk.org/would-a-multilateral-investment-court-bebiased-shifting-to-a-treaty-party-framework-of-analysis/ Sands P (2016) Climate change and the rule of law: adjudicating the future in international law. J Environ Law 28(1):19–35. https://doi.org/10.1093/jel/eqw005 Voigt C (2016) The potential roles of the ICJ in climate change-related claims. In: Peeters M, Farber D (eds) Climate change law. Edward Elgar Publishing, pp 152–166 Watt-Cloutier S (2005) Inuit circumpolar conference, petition to the inter American commission on human rights seeking relief from violations resulting from global warming caused by acts and omissions of the United States. http://www.inuitcircumpolar.com/uploads/3/0/5/4/30542564/ finalpetitionicc.pdf. Accessed 10 Sept 2018 Young OR (2017) Governing complex systems: social capital for the anthropocene. MIT Press, Cambridge, MA

Chapter 12

Global Assessment and Review: The Importance of a Transparency Turn in International Environmental Law Nafiseh Jafarzadeh

Abstract Transparency mechanisms have been recognized as a valuable tool for enhancing the effectiveness of international environmental law and global environmental governance. These mechanisms are, however, under pressure from a range of processes and impacts. Challenges including data availability and lack of comprehensive data collection, unstandardized reporting formats, unsystematic monitoring processes, and fragmentation in international environmental law have triggered a non-transparent culture. In times of a “New Earth”, international environmental law needs to keep pace with continuing global changes. New approaches are thus required to deliver a transparency turn in international environmental law. The concept of the Anthropocene has the potential to support efforts towards a more transparent and integrated approach to international environmental law. This includes inter-disciplinary responses to the human-environment interfaces, as well as information exchanges and innovative visions. This paper highlights the importance of transparency tools in international environmental law, identifies the current challenges, and explores possible opportunities created by the Anthropocene epoch to overcome transparency challenges and enhance international environmental law. Keywords Global environmental assessment · Transparency · Reporting · Monitoring

12.1 Introduction The causes and consequences of pressing environmental problems extend beyond national jurisdictions. Managing the complexities and uncertainties as well as the highly dynamic nature of contemporary international environmental problems necessitates reliable data, exchange of information and accurate assessments. Such mechanisms are essential to monitoring the state of the environment and avoiding critical tipping points in the Earth system. In the Anthropocene—the current geological era of human-induced environmental change, we need meaningful measures, standardized reports and reviews to facilitate our understanding of global environmental change N. Jafarzadeh (B) Environmental Policy Analyst, Macquarie University, Sydney, Australia e-mail: [email protected] © Springer Nature Singapore Pte Ltd. 2019 M. Lim (ed.), Charting Environmental Law Futures in the Anthropocene, https://doi.org/10.1007/978-981-13-9065-4_12

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while delivering a common and integrated vision which facilitates transparency for smarter decision-making and responses. Measuring, reporting, follow-up and monitoring processes are fundamental to the effectiveness of international environmental law and global good governance. To this end, transparency mechanisms have understandably received increased global attention. Indeed, these transparency mechanisms enable the generation of accurate data and information for establishing best practices and for providing informed decisionmaking. More fundamentally, these processes are essential for building trust and a common vision and understanding among different actors and State parties with a large range of mindsets (Jutta and Hey 2013). Transparency mechanisms have also been endorsed as the key governance foundation and means of implementation of environmental rule of law by the IUCN World Commission on Environmental Law in its 2016 World Declaration on the Environmental Rule of Law (IUCN 2016). This chapter examines the effectiveness of global assessment and review mechanisms as a transparency tool in the context of international environmental law. The chapter then highlights a range of challenges and illustrates the major features of the Anthropocene that have important implications for these transparency mechanisms. The chapter concludes by demonstrating how the Anthropocene could inspire the requisite transparency turn for the appropriate future development of international environmental law.

12.2 The Importance of Transparency for Effective Global Environmental Governance Transparency and accountability are the two central pillars of good governance. Transparency as a positive value reflects different understandings across the disciplinary board. It is often associated with information and knowledge, accountability and legitimacy, a principle of democracy, effectiveness and good governance (Bianchi 2013). The definition given by the Chayes et al. (2000) acknowledge the importance of transparency and highlight specific expectations of transparency in respect of international law: The treaty regime must have a transparent information system. We use “transparency” to mean the adequacy, accuracy, availability, and accessibility of knowledge and information about the politics and activities of parties to the treaty, and of the central organizations established by it on matters relevant to compliance and effectiveness, and about the operation of the norms, rules, and procedures established by the treaty.

By this definition, transparency as a norm, rule, principle or practice would be applicable in improving the effectiveness of operations in international environmental law as well as global environmental governance. Transparency is a necessary pre-condition for achieving accountability because, without access to clear, accurate and current information, it is impossible to measure whether the promised standard has been met. Moreover, transparency increases trust.

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To achieve transparency and accountability, states need a clear and direct mandate and should regularly report their performance. Thus, international legal drivers play a vital role by providing certainty and incentives for groups to work together for global sustainability (Jafarzadeh 2014). The availability of information on the state of the environment allows the international community to determine whether State parties are complying with their legal obligations and commitments. Therefore, scientific assessments, metrics and data-driven approaches are a necessary feature of transparent and accountable regulatory actions and decisions to address global environmental problems (Jafarzadeh 2014). The different forms of environmental information and data gathering, such as measuring and periodic reporting system, and verification are some of the most effective mechanisms of transparency in international environmental law. The obligation to report and disclose information about particular activities or emergency conditions on a regular or periodic basis is a feature of international environmental law. Thus, the availability and accessibility of information, providing consistent reports on human interactions with the environment, and monitoring have a rich history and have received much attention in environmental treaties and agreements. Environmental impact assessment (EIA) reports, information exchange and consultations, monitoring, accounting and eco-labelling processes are all techniques for implementing principles and rules in international environmental law. In this regard, observation, inspection or verification are the most common terms used in international law to ensure compliance with the objectives of international treaties and their obligations (Sands 2003). Indeed, scientific assessment of gaps in achievement and performance progress towards meeting internationally agreed targets is a fundamental component of international law. The ‘transparency turn’ in international environmental law is seen in a range of international agreements, voluntary disclosure initiatives and public-private partnerships (Gupta and Mason 2014). Numerous treaties provide reporting obligations and tools for countries to address this requirement. Multilateral Environmental Agreements (MEAs) have thus established secretariats to facilitate the exchange of information among parties and the assessment of State performance (Brunnee 2006). These compliance tools therefore track trends, identify problems and highlight causal linkages. This enhances the credibility of information as a basis for further decisionmaking in MEAs (Treves et al. 2009). Most MEAs have included relatively soft compliance measures, such as information gathering, self-reporting and monitoring (Pisupati et al. 2010). However, the adoption of Agenda 211 encouraged countries to measure their progress and produce State of the Environment (SoE) reports. Furthermore, the Stockholm Declaration,2 1 Agenda 21, Report of the UNCED, I, UN Doc A/CONF.151/26/Rev.1 (1992). Agenda 21 remains a remarkable blueprint for sustainable development via reforms to environmental law and policy. Chapter 40—entitled ‘Information for Decision-making’—calls for program areas that must be implemented to ensure that decisions are based increasingly on sound information. 2 Stockholm Declaration on the Human Environment, 16 June 1972, Principle 20, UN Doc A/CONF.48/14 (1972). The declaration marked the first step towards the necessity to provide data and information to address environmental issues.

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the Rio Declaration3 and Aarhus Convention4 include important provisions for supporting data collecting and enhancing the availability and equitability of credible and timely information and surveillance processes for improving decision making. The principle of the duty to assess the environmental impacts of proposed activities has also received full consideration in international environmental law. Despite the central importance of transparency and accountability mechanisms, the effective implementation of such tools faces a range of challenges. The next section explores these difficulties in further detail.

12.3 Challenges to Achieving a Transparent and Accountable Global Environmental Governance System The relationship between transparency and international environmental law remains unclear and insufficient. There is also an implementation gap in global environmental governance (Ivanova 2016). Though a series of agreements and conventions have been developed, little has been implemented. While many international institutions influence policy and generate incentive instruments and financing mechanisms for implementation, yet there is no a clear vision of accountability and responsibility towards the implementation of MEAs (Ivanova 2016). Further, despite the existence of numerous initiatives, often systematic and comprehensive data collection is lacking. The comparability of data across countries and institutions is also inadequate while multiple sets of indicators exist without a common analytical framework (Ivanova 2016). At the same time, there is a lack of a deep focus on human-environmental interactions and feedbacks which are necessary to recognize, review and, track large-scale changes and transformations towards global sustainability (Olsson et al. 2017). Moreover, in the context of providing early-warning and generating momentum for action, there is a lack of coordination associated with information management and dissemination. Despite a large number of early warning initiatives, often developing countries as the most vulnerable countries to disasters lack the capacity to implement the technologically advanced systems (Ivanova 2016).

3 Rio

Declaration on Environment and Development, Report of the United Nations Conference on Environment and Development, Principle 9 and 10, UN Doc A/CONF.151/6/Rev.1 (1992). Principle 10—which is known as the environmental democracy principle- seeks to change the way decisions are made by reaffirming respect for basic human rights and good decision-making procedures as way to confront the socio-ecological crisis of the Anthropocene. For more discussion, see De Silva (2012). 4 Aarhus Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters, opened for signature 25 June 1998, 38 ILM 517 (entered into force 30 October 2001). The convention creates a unified legal framework for governmental accountability, transparency and environmental democracy.

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The lack of high quality environmental data and information, standardised reporting requirements and global monitoring programmes hamper transparency in international environmental law and makes policies less effective (Mucci 2012). Therefore, reporting and monitoring of global environmental changes is necessary in international environmental law to keep governments accountable for their commitments to the environment. However, despite realising and implementing science-based policies by more advanced techniques, inadequate information and inconsistencies have affected commitments and transparency in decisions. Limited available and accurate time-series data, which hamper tracking changes over time by performance indicators, have also caused a number of countries to fail to report their key environmental issues (Walpole et al. 2009). In many cases, data are scarce, out-dated and disjointed, and ‘comparability across jurisdictions is poor and severely limited’ (Esty and Ivanova 2002). Moreover, fragmentation and diversification in international environmental law, and the different requirements under each treaty and convention, make it increasingly difficult for countries to meet their reporting obligations. Producing required information and preparing reports for MEAs, presents difficulties for States especially, for developing countries (Jutta and Hey 2013). It reflects that in order to have a meaningful participation of developing countries, the first step is transparency and right to access to adequate information and technology. In addition, lack of capacity to gather, assess and provide adequate environmental information, as well as unclear reporting formats, are reasons for non-participation or inconsistency in reporting (Lolari 2004). Indeed, reporting requirements need to be streamlined in a comprehensive manner. In the context of compliance monitoring, the process remains unsystematic. Convention secretariats often lack the authority and resources to verify reported information or to conduct independent assessments and usually they have no effective non-compliance provisions (Ivanova 2016). The widespread challenge of unaccountability and non-transparency in the international system needs to be addressed at the global level (Najam and Halle 2010). Najam and Halle (2010) explore the main reasons for the unaccountable and nontransparent culture that currently persists in international environmental governance systems. They suggest the following solutions: (1) States and institutions must be measured not only by their statements of good intentions, but also by measurable implementation of their commitments and achievement of their goals; (2) MEAs performance should also be measured by improvements in implementation and real steps in global environmental metrics, rather than by simply accounting for the number of meetings, negotiation processes and decisions that were made. Since there is also a lack of information and institutional memory regarding best practices and laggards, the scope of shaming as an accountability device is furthered reduced. A system of incentives to reward countries with better performance and better compliance records could improve accountability and transparency in the international system. International environmental law as an essential and integral component of global environmental governance provides a “constitutive, legitimising,

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and regulative” basis for governance (Kotzé 2014). The global nature of the Anthropocene has the potential to provide a paradigm shift to respond these challenges by offering a new holistic and integrated vision.

12.4 A New Transformation: Transparency in the Anthropocene In light of existing global environmental problems, the concept of the Anthropocene, as a game-changer (Olsson et al. 2017), has the potential to support transformations needed towards a more transparent, systematic and integrated approach. Specific features of the Anthropocene have implications for efforts to meet the needs in international environmental law for the use of data and information in general and generate momentum for transparent and programmatic actions in particular including planetary boundaries and a human focus, nonlinearities and high complexity of changes, moving through a global scale and beyond the state. The Anthropocene highlights the need for further analysis on the interactions in the dynamic nature of social-ecological systems. The Anthropocene also provides the opportunity for comprehensive and inter-disciplinary responses to address international environmental problems that are “ecologically rooted but have severe social, political, legal, and economic” consequences (Kotzé 2014). Many environmental problems face significant uncertainties with regards to their causes, effects and appropriate responses. Indeed, the Earth system is associated with complexity and uncertainty. This reflects the challenge for non-linear law and governance to keep pace with non-linear and continuous global changes. The Anthropocence therefore brings additional temporal dimensions which need to be considered when mediating the human-environment interface (Kotzé 2014). Thus, these fundamental features of the Anthropocene, provide the unique opportunity and imperative to develop innovative methods of holistic assessments and monitoring to reconcile social and ecological elements in the face of global environmental change. At the same time, more than ever before, it provides the requisite incentive to collect and store high-quality, meaningful, and cross-country comparable data that are necessary to identify gaps and causal linkages. In our epoch of information technology, dissemination of these new volumes of knowledge and the vast quantity of data ‘may lead to chaos and breakdown’ (Esty 2004). In fact, not adequately processed data could not effectively contribute to create informed policy. The data needs to meet the requirements and be evaluated in meaningful context to yield its value. Therefore, data quality control and assurance mechanisms are required to generate common understanding of existing and emerging problems. Data analysis also must be seen as a strategic imperative for the current and future research agenda in the Anthropocene. The Anthropocene discourse could arguably fulfil and shape the new interaction between science and policy required to translate sound scientific analysis into

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policy options that are responsive to a country’s needs. Importantly, the Anthropocene not only helps social scientists to engage more actively with broader communities of natural scientists, it also contributes to integrated research programs by adding pivotal insights on decision-making and regulatory effectiveness (Biermann 2016). Undoubtedly, we cannot solve the novel dynamic environmental problems of the Anthropocene without embracing the challenge of bridging disciplinary divides and integrating information and knowledge to navigate an effective and legitimate system. In addition, as Gonzalez (2013, 2015) states, the views of the Global South are frequently marginalized and North-South environmental conflicts reflect continuing social injustice. The lens of the Anthropocene provides the opportunity to shed light on the North–South divide to draw special attention to the most vulnerable countries. Meeting the challenges of North–South cooperation within planetary boundaries requires fostering an integrated system for exchanging scientific and technical information, such as clearing-house mechanisms, and introducing best practices. Such a holistic system needs to be replaced with a singular, silo-based and fragmented vision to address the environmental problems. The notion of the Anthropocene can facilitate understanding of the unpredictability and uncertainty of the Earth system and the complexity of ecosystems. This point in Earth’s history is also an opportune moment to bring social interventions into the global paradigm and a new perspective of transparency within global environmental reviews.

12.5 Embracing Transparency: Measuring, Reporting and Monitoring Environmental Trends Measuring, reporting and monitoring are essential compliance drivers to make regulations and permits effective and synergistically being used with disclosure and transparency approaches, to confront the socio-ecological crisis of the Anthropocene. Effective international environmental law requires transparency. Generating meaningful and reliable information, compliance processes and continuous scientific exchanges will feed back into agenda-setting, negotiation, decision-making and regulatory processes (Jutta and Hey 2013). Environmental reporting is a system for disseminating assessments and information regarding the status of the environment to multiple stakeholders, including governments, industries, companies, NGOs and civil society. While the significant role of the reporting process in global environmental governance is clear, national reporting among MEAs can be a burden for many parties. To overcome this problem, some projects have been piloted to develop integrated processes and approaches to facilitate national reporting. Environmental monitoring can also be defined as regular observations and a follow-up process in a time series designed to give information about the status

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of the environment, and to measure and predict any changes and emerging issues in the environment (Esty et al. 2005). Environmental performance monitoring is one of the most important components of transparency that is essential to assist the implementation of mitigation measures in complying with agreed targets and guidelines. Increasing a culture of transparency and accountability in international environmental law requires extensive national reporting mechanisms to measure progress against obligations and commitments based on sets of performance indicators. Establishing monitoring mechanisms for measurable indicators of performance is also a key function of creating transparency in international environmental law. Moreover, keeping the global environment under review and creating a global-transparent monitoring system should be considered with a universal approach. Such an approach requires bridging gaps and implementing mechanisms at the global level to assist states to design their own national indicators to fulfil their reporting obligations in compliance with international agreements. In particular, this model will require providing baseline data, scientific assessments and data collection systems; preparing and regularly disseminating environmental reports; ensuring all environmental decision making is transparent; supporting public participation; and constantly monitoring all decisions to ensure they are based on the latest environmental scientific information. Transparency in international environmental law is a transnational problem. It therefore, requires collective responses, with cooperation from global North to global South and all actors and community groups at the society level.

12.6 Conclusion Today, we live on a “New Earth” (Biermann 2016). New approaches are thus required to address the environmental challenges of this fundamentally new epoch in planetary history. The lens of the Anthropocene provides holistic and integrated visions and paradigms to look at the architecture of international environmental law and policy. Indeed, the Anthropocene epoch has the potential to have significant impacts on environmental law and global transparency. Global assessments and reviews, as a transparency tool, play a significant role navigating openness and coherence in international environmental law through the Anthropocene. Adopting the concept of the Anthropocene reflects a constructive interaction between social and natural sciences which helps to break out of silos and foster transparency while opening a window to information. Introducing the Anthropocene into the international environmental law domain as a new discursive context could assist to facilitate the synthesis of a common vision and synergy and to create capacity, demand and paradigm shift for implementation of environmental agreements. Thus, an enhanced science-policy interface is required to translate sound scientific analysis into policy options that are responsive to country’s needs. A comprehensive and systematic approach is also required to have effective transparent strategies and non-compliance measures.

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Part III

Implementing Transformative Law and Governance for Sustainable and Equitable Futures

Chapter 13

Indigenous Rights and Universal Periodic Review: A Confluence of Human Rights and Environmental Issues Jonathan Liljeblad

Abstract The scale and complexity of the issues posed by the Anthropocene requires resolution through the involvement of science with alternative knowledge systems. Indigenous peoples provide a rich source of alternative knowledge systems. The Universal Periodic Review (UPR) mechanism of the United Nations (UN) Human Rights Council (HRC) offers a way of involving indigenous perspectives into global discourses about the Anthropocene. UPR subjects each UN member state to a periodically scheduled review of its human rights record, but does so by welcoming reports from non-state sources including indigenous peoples. Indigenous use of UPR is welcomed by the UN HRC and encouraged by the International Working Group on Indigenous Affairs. While the UPR is ostensibly a component of the UN human rights system, it has become an inclusive process accommodating human rights issues arising from a broad array of subjects, including environmental problems. This means that the UPR allows indigenous peoples to take local environmental problems to an international level. Keywords Indigenous · Indigenous rights · Universal Periodic Review · Human Rights Council · United Nations · Anthropocene The term Anthropocene marks the current geological epoch as one wherein humans dominate planetary processes (Steffen et al. 2007; Waters et al. 2016). This, however, incurs an acknowledgement of the current epoch as unique, with issues that call for new approaches in understanding to find potential solutions (Bai et al. 2016). The scale and complexity of human interactions with Earth systems in the Anthropocene requires the contribution of perspectives from science, social science, and humanities (Bai et al. 2016). The collective sum of these fields, however, are by themselves not sufficient, since the scope of challenges posed by the Anthropocene encompass diverse contexts with different phenomena (Bai et al. 2016). As a result, responses to the Anthropocene call for science to connect with a range of societal stakeholders in mutually informaJ. Liljeblad (B) College of Law, Australian National University, 5 Fellows Road, Acton, ACT 2601, Australia e-mail: [email protected] © Springer Nature Singapore Pte Ltd. 2019 M. Lim (ed.), Charting Environmental Law Futures in the Anthropocene, https://doi.org/10.1007/978-981-13-9065-4_13

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tive and instructive relationships (Bai et al. 2016). This involves the inclusion of alternative knowledge systems to explore potential solutions (Hoppers 2002). Indigenous peoples provide a rich source of alternative knowledge systems (Zeppel 2009), with unique worldviews that encompass diverse understanding of human relations with the environment (Holtzman 2004; Martin et al. 2010; Nepal 2002; Ormsby 2011). Indigenous perspectives offer alternative forms of conservation that can be integrated with science and prevailing environmental policies (Holtzman 2004; Lyver et al. 2014; Martin et al. 2010; Nepal 2002; Ormsby 2011). Because of the diversity of indigenous peoples and their respective experiences, indigenous perspectives can be connected to science and policy in ways specific to individual cases (Zurba et al. 2012). The breadth and depth of knowledge offered by indigenous peoples are accessible to the non-indigenous world, as indigenous peoples have sought to advance their presence to international audiences, both collectively as a global indigenous movement and separately as disparate groups (Isa 2014; Muehlebach 2001; Martin and Wilmer 2008; Martin 2003). The inclusion, however, of indigenous peoples in addressing issues of the Anthropocene is not just a matter of improving conservation but also a matter of social justice and democracy (Nursey-Bray and Hill 2010). The history of indigenous peoples reflects colonial subordination that led to contemporary marginalization. The consequences have been political exclusion, legal subordination, socio-economic suppression, and cultural disruption (Nursey-Bray and Hill 2010). These factors have driven indigenous movements for greater self-determination, protection of rights, and inclusion in decision-making processes that affect indigenous interests (Brechin et al. 2002; Martin and Wilmer 2008; Schmidt and Peterson 2009). Hence, efforts that integrate indigenous perspectives into larger efforts to address the Anthropocene also serve to further indigenous efforts to redress historical and current marginalization. The Universal Periodic Review (UPR) mechanism of the United Nations (UN) Human Rights Council (HRC) is a potential avenue to incorporate indigenous efforts into global discourses. UPR is directed at promoting human rights among UN member states (UNGA 2006, 2007), but it offers the potential to encompass environmental concerns of marginal perspectives. While it is a state-driven process, the UPR allows the contribution of reports from non-state actors in its evaluation of individual states. As such it facilitates the inclusion of voices such as indigenous peoples. This provides an opportunity for the assertion of indigenous rights, which under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) encompasses land use and hence includes environmental issues on indigenous lands (UN OHCHR 2007, 2013). Since its inception in 2006, however, there has been little work on the UPR as a tool to address indigenous environmental concerns. This calls for further research to study indigenous experiences with the UPR, particularly with respect to questions about (1) how indigenous peoples view the intersection of environmental and human rights issues and (2) how indigenous peoples can use the UPR to advance such issues? The UPR operates by subjecting each UN member state to a periodically schedule review of its human rights record, such that a single cycle to review all the states in the UN General Assembly translates into a review period of approximately four

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years (UN OHCHR 2015a, b). For each state, the UPR review process follows a sequence of four steps: (1) the submission of information in the form of reports about a state’s human rights record from UN bodies, UN member states, national human rights institutions (NHRIs), and non-governmental organizations (NGOs); (2) a Working Group meeting involving discussions based on the submitted reports to evaluate the state’s progress towards the standards of the UN human rights system; (3) the publication of an outcome report at the end of the Working Group meeting containing recommendations to improve the reviewed state’s status on human rights; and (4) subsequent provision of capacity-building and technical aid, along with the exercise monitoring measures, directed at helping the reviewed state fulfil the outcome report recommendations (UN OHCHR 2015a, b; UPR 2015). Such features make UPR a collaborative peer-review process aimed at promoting, persuading, and building human rights capacities within UN member states. This reflects a constructivist philosophy directed at nurturing normative changes towards the standards of the UN human rights system (Davies 2010). Indigenous use of UPR is welcomed by the UN HRC and encouraged by the International Working Group on Indigenous Affairs (IWGIA) (UN OHCHR 2015b; IWGIA 2015). Indigenous peoples can participate in the UPR in several ways: by submitting reports prior to the Working Group meeting, forwarding information to member states during the Working Group meeting, issuing comments during assembly of the outcome report, and monitoring the performance of a reviewed state in relation to outcome report recommendations. Hence, while as non-state actors indigenous peoples cannot engage discussions conducted during Working Group proceedings, they are still able to contribute their perspectives to UPR deliberations. In addition, by using the UPR, indigenous groups have the potential to garner international attention that allows them to ally with wider coalitions capable of raising indigenous concerns to parity with more well-known civil and political issues (IWGIA 2011; UPR 2015). Thus, UPR provides ways for indigenous activists to advance their interests outside the UN system. While the UPR is ostensibly a component of the UN human rights system, it has become an inclusive process accommodating human rights issues arising from a broad array of subjects, including environmental problems (Bureau des Avocats Internationaux 2011; Grear and Kotze 2015: 235) and indigenous complaints (Anaya 2012; Cultural Survival 2015; IWGIA 2015). In addition, the use of the UPR to address environmental issues is a valid exercise recognized by the United Nations Office of the High Commissioner for Human Rights (“OHCHR”) (HRC 2013). This is consistent with a trend to combine environmental and human rights issues (Boer 2015; Grear and Kotze 2015). Hence, in using the UPR, indigenous peoples have a means to advance environmental grievances to an international level through a UN human rights forum. This means that the UPR allows indigenous peoples to take local environmental problems to an international level. Such a possibility is significant in that it allows indigenous peoples to (1) bypass potential obstructions posed by their respective states, (2) mobilize a global audience to focus on local issues, and (3) elevate local concerns into international agendas. These kinds of activities are encouraged by

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the IWGIA (IWGIA 2011) and echo larger trends of non-state actors exercising more transnational activity (Brysk 2000; Keck and Sikkink 1998; Risse et al. 1999; Rodrigues 2004; Wapner 1996; Wiedener 2009) and entering into roles at multiple levels of governance (Guidry et al. 2000; Held and McGrew 2002; Scholte 2002). For example, Pamela Martin finds that Amazonian indigenous activism were able to overcome local government resistance by appealing to global audiences and engaging international institutions like the United Nations (Martin 2003). Typically, studies of environmental issues and human rights involve cases where the norms about appropriate behavior are conveyed from a universal or international level down to a domestic level (Finnemore and Sikkink 1998; Klotz 1995). Indigenous peoples, however, tend to follow a converse pattern scholars like Sidney Tarrow describe as “scale shift” (Tarrow 2005) whereby domestic activists seek to take norms held at the grass-roots level upward to an international system (Martin 2003, p. 584). This is because many cases of indigenous environmental problems involve states that are unresponsive or resistant to indigenous concerns over environmental degradation (Aiken and Leigh 2011; Hochstetler and Keck 2007; Keck and Sikkink 1998; Martin and Wilmer 2008; Martin 2003). For example, Kathryn Hochstetler and Margaret Keck find that Brazilian indigenous movements appealed to the United Nations and civil society groups in other countries to push the Brazilian government into addressing indigenous demands (Hochstetler and Keck 2007). The inception of the UPR, however, with the commencement of the HRC in 2006 represents a relatively brief time for academic study. As such, it provides grounds for further investigation, with research having implications for scholars and activists in indigenous issues, human rights, and the environment. In particular there are a number of areas that call for attention. For example, the UPR involves a measure of specialized awareness and knowledge about a unique element of international law and politics. This is not something commonly known to peoples in remote locations with little formal education in global affairs, and raises questions of how indigenous peoples learn about the UPR and acquire the skills to use it. Further, the locus of the UPR in Switzerland and its procedural demands for documentation entails an expenditure in time, energy, and resources to prepare and submit materials for Working Group meetings, posing the issue as to the factors in the decision-making process that drives some indigenous groups to pursue UPR and others to forego it. Next, the statedriven nature of UPR limits the involvement of non-state actors in Working Group proceedings, and so invites attention over the methods used by indigenous voices to work their concerns into UPR processes and affect its outcomes. In addition, the UPR is only one option out of many at the international level for mobilizing support on behalf of local environmental grievances, leaving the question as to the ways in which indigenous peoples use the UPR within a larger slate of available strategies for transnational outreach. Moreover, the UPR focuses on engagement to promote changes in state behaviour, which calls for attention as to how indigenous peoples ensure that engagement leads to state reforms consistent with UPR Working

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Group recommendations. This points to an additional topic of the UPR’s record itself in terms of to what degree indigenous groups have been satisfied with the UPR’s impact on resolution of their environmental grievances. Underlying all of these are philosophical questions about how the UPR functions to facilitate indigenous agency or structure indigenous activity—and how it alters agency-structure debates for indigenous peoples at local and international levels. With respect to the inclusion of indigenous perspectives in discourses about the Anthropocene, the aforementioned issues can be directed to highlighting the extent to which the UPR has integrated indigenous views into its proceedings. In particular, attention can be turned to the extent to which the UPR hosts indigenous perspectives about human relationships with the environment. Potential research agendas that could address the above topics could follow either broad, comprehensive studies or specific, focused case studies. The former would enable identification of trends for indigenous peoples in their exercise of the UPR. The latter would support understanding about the nuances of engagement with the UPR for an individual indigenous group. Broad studies involving multiple indigenous groups facilitate comparison across different indigenous peoples, the similarities and differences in experiences with the UPR indicating the various ways in which the UPR fulfils its potential to integrate indigenous perspectives into international discourses with a non-indigenous global community. In contrast, case studies focused on efforts of a specific indigenous group to engage the UPR would allow for deeper understanding of the modes of interaction and the meaning of agency for indigenous voices within the structure of the UPR. What would also be insightful is to assemble both broad trend analyses and focused case studies into a larger framework that could reveal latitudinal insights about the use of the UPR by various indigenous groups at a particular moment in time as well as longitudinal insights about indigenous use of the UPR over an extended period of time. Looking to latitudinal and longitudinal studies would reveal the extent to which the UPR changes as a mechanism for promoting indigenous perspectives to an international community. In conclusion, the UPR follows ongoing trends merging indigenous, human rights, and environmental issues together. Specifically, it has been promoted by the UN and the IWGIA as providing utility for indigenous rights across three dimensions: it accommodates indigenous environmental grievances within a human rights mechanism, it bridges local grievances to an international forum, and it facilitates non-state outreach efforts to states. As such, the UPR offers a mechanism enabling indigenous voices that have been historically marginalized to be heard on a global stage. Thus, the UPR has the potential for indigenous perspectives to engage larger global discourses about the Anthropocene. The capacity of the UPR to involve marginalized voices such as those of indigenous peoples warrants further analysis to better understand the ways the UPR can facilitate the inclusion of indigenous peoples in international efforts to address the issues of the Anthropocene.

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Klotz A (1995) Norms reconstituting interests: global racial equality and U.S. sanctions against South Africa. Int Organ 49(3):451–478 Lyver P, Davies J, Allen R (2014) Settling indigenous claims to protected areas: weighing maori aspirations against Australian experiences. Conserv Soc 12(1):89–106 Martin P (2003) Globalization of contentious politics: the Amazonian indigenous rights movement. Taylor & Francis Martin P, Wilmer F (2008) Transnational normative struggles and globalization: the case of indigenous peoples in Bolivia and Ecuador. Globalizations 5(4):583–598 Martin G et al (2010) Indigenous and community conserved areas in Oaxaca, Mexico. Manag Environ Qual Int J 22(2):250–266 Muehlebach A (2001) “Making Place” at the United Nations: indigenous cultural politics at the U.N. working group on indigenous populations. Cult Anthropol 16(3):415–447 Nepal S (2002) Involving indigenous peoples in protected area management: comparative perspectives from Nepal, Thailand, and China. Environ Manage 30(6):748–763 Nursey-Bray M, Hill R (2010) Australian indigenous peoples and biodiversity. Soc Altern 29(3):13–19 Ormsby A (2011) The impacts of global and national policy on the management and conservation of sacred groves of India. Hum Ecol 39(2011):783–793 Risse T, Ropp S, Sikkink K (1999) The power of human rights: international norms and domestic change. Cambridge University Press, New York Rodrigues MGM (2004) Global environmentalism and local politics: transnational advocacy networks in Brazil, Ecuador, and India. State University of New York Press Schmidt PM, Peterson MJ (2009) Biodiversity conservation and indigenous land management in the era of self-determination. Conserv Biol 23(6):1458–1466 Scholte JA (2002) Civil society and democracy in global governance. Glob Gov 8(3):281–306 Steffen W, Crutzen P, McNeill J (2007) The anthropocene: are humans now overwhelming the great forces of nature? Ambio 36(8):614–621 Tarrow S (2005) The new transnational activism. Cambridge University Press United Nations General Assembly (UNGA) (2006) Human Rights Council, A/Res/60/251. http:// www.ohchr.org/EN/HRBodies/UPR/Pages/BackgroundDocuments.aspx United Nations General Assembly (UNGA) (2007) Institution-building of the United Nations Human Rights Council, A/HRC/Res/5/1. http://www.ohchr.org/EN/HRBodies/UPR/Pages/ BackgroundDocuments.aspx United Nations Office of the High Commissioner for Human Rights (UN OHCHR) (2007) The United Nations declaration on the rights of indigenous peoples. http://www.ohchr.org/EN/Issues/ IPeoples/Pages/Declaration.aspx United Nations Office of the High Commissioner for Human Rights (UN OHCHR) (2013) The United Nations declaration on the rights of indigenous peoples: a manual for National Human Rights Institutions. Office of the United Nations High Commissioner for Human Rights United Nations Office of the High Commissioner for Human Rights (UN OHCHR) (2015a) Basic facts about the UPR. http://www.ohchr.org/EN/HRBodies/UPR/Pages/BasicFacts.aspx United Nations Office of the High Commissioner for Human Rights (UN OHCHR) (2015b) Human Rights Council and its Universal Periodic Review. http://www.ohchr.org/EN/Issues/IPeoples/ IPeoplesFund/Pages/HumanRightsCouncilUniversalPeriodicReview.aspx Universal Periodic Review (UPR) (2015) UPR info. http://www.upr-info.org/en Wapner P (1996) Environmental activism and world civic politics. SUNY Press Waters C et al (2016) The anthropocene is functionally and stratigraphically distinct from the holocene. Science 351(6269) Wiedener P (2009) Global links and environmental flows: oil disputes in Ecuador. Glob Environ Polit 9(1):31–57 Zeppel H (2009) Managing cultural values in sustainable tourism: conflicts in protected areas. Tour Hosp Res 19:93–104 Zurba M et al (2012) Building co-management as a process: problem-solving through partnerships in Aboriginal Country, Australia. Environ Manage 49:1130–1142

Chapter 14

Constitutionally Shackled: The Story of Environmental Jurisprudence in India Nupur Chowdhury

Abstract This paper evaluates the development of environmental jurisprudence in India to make the argument that the primary pursuit of Constitutional remedies in the case of environmental harms by the appellate Courts in India has impeded the development of other statutory remedies. The poor performance of India and especially urban India on the Environmental Performance Index is evidence of law’s failure to fashion accessible and robust remedies for addressing environmental harms. I discuss three cases which are the milestones in development of environmental jurisprudence in India. In the Oleum Gas Leak case the Supreme Court fashioned the principle of absolute liability for environmental harms, the Vellore Citizen’s Welfare Forum case is one of the largest application of polluter’s pays principle (PPP) in terms of environmental compensation claims and finally, the Godavarman case is a continuing mandamus which is arguably the longest running environmental case in domestic Courts in India (and probably in the world). Each of these case studies illustrate that remedies have to be made accessible to the people and evolved in much greater consultation with stakeholders rather than devised suo moto by the Courts in a top down fashion and environmental harms cannot always be rendered commensurate by collection of monies. These cases highlight the inadequacy of current approaches to address the challenges of global environmental change. The challenge of the Anthropocene provides an opportune moment to revisit law’s failures and draw inspiration in fashioning new remedies and institutional collaborations which address this challenge. Keywords Jurisprudence · India · Supreme Court · Polluter pays principle

N. Chowdhury (B) Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi 110070, India e-mail: [email protected] © Springer Nature Singapore Pte Ltd. 2019 M. Lim (ed.), Charting Environmental Law Futures in the Anthropocene, https://doi.org/10.1007/978-981-13-9065-4_14

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14.1 Introduction Environmental jurisprudence in India has been embedded within the constitutional discourse on fundamental rights.1 The Supreme Court of India (SCI) has been the foremost Court in developing environmental jurisprudence through public interest litigation in India. The Supreme Court also functions as a constitutional court charged with the task of being the authoritative interpreter of the Constitution. The Court has shaped the exploration of remedies through a clear preference for constitutional remedies. Similarly, the dominance of public interest litigation as the primary procedural mechanism for addressing environmental harm has had a peculiar set of impacts. The foremost being the recognition of the pre-eminent role of the State in addressing environmental harms. The primary research question of this chapter is to determine the implication of this approach of the courts particularly in seeking to achieve just and sustainable outcomes in the Anthropocene. To address this question, this chapter will critically examine three cases that have had a definitive impact on the development of environmental jurisprudence in India (Oleum Gas Leak case, Vellore Citizens Welfare Forum Case and the Godavarman case). Although these three cases relate to three different kinds of environmental risk, all of them also illustrate the limitations of the exclusive pursuit of constitutional tropes in addressing environmental harm. Ultimately, by highlighting the limitations of India’s environmental jurisprudence being constitutionally shackled, this piece attempts to provide an opening for an alternative imagination of legal remedies for addressing environmental harm in the Anthropocene.

14.2 Challenges to Obtaining Redress for Environmental Harm Despite recognizing environmental principles such as sustainable development, polluter pays and the precautionary principles in the right to life (e.g. Article 21 of the Constitution of India), jurisprudence in India, it is marked by inconsistency in application. Meanwhile, little effort has been made to incrementally build a sustained jurisprudence (Rosencranz and Batra 2018). Often the Court has eschewed detailed argumentation and its holdings provided little guidance on the circumstances, reasons and conditions for the application of these principles. Executive apathy, most starkly revealed by repeated non-implementation of orders, has meant that judicial findings have had limited impact on the ground (Rajamani 2007a). A key challenge stems from the nature of the remedy itself. Civil liberties such as freedom of expression, life and personal liberty, equality before law are given special protection under the Constitution and are referred to as fundamental rights. The Constitution empowers citizens to petition the Courts (Supreme Court and the 1 Currently

area.

the National Green Tribunal as well as several High Courts have taken a lead in this

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High Courts) when there is a fundamental rights violation. These fundamental rights are in the nature of what is often referred to as negative liberties—i.e. they protect individual freedoms largely from state encroachment (or by private parties). This is materially different from directive principles of state policy (DPSP)—which is in the nature of positive liberties—that recognize the welfare state and its responsibility to deliver social and economic equality.2 However rights embedded in DPSP are non justiciable under the Indian Constitution. In effect that means their violation cannot be remedied by the intervention of the Court. Environmental public goods such as clean air and clean water are in the nature of DPSP. However public interest litigation was developed by the Court to address social justice claims of the marginalized. The Supreme Court interpreted the Article 21 right to life and personal liberty—expansively to create an obligation on the State to provide for a series of public goods entitlements—right to clean water, right to clean environment, etc. Thus, the Court interpreted a constitutional remedy meant for ensuring negative liberty, to deliver environmental public goods. In response, the State has often stated good intentions but done precious little to deliver these goods. False dichotomies are repeatedly narrated and peddled in the Court (employment generation versus environmental protection) by the State in such circumstances. Surprisingly, it finds support of the Court which respects the legitimate role of the State to make such trade-offs.3 Further, even in cases where Courts have been confronted with pure brown pollution issues,4 the enthusiasm to prioritize one shot technical solutions (like in the vehicular air pollution case)5 as policy remedies through reliance on technical experts to the exclusion of other stakeholders (affected parties) (Rajamani 2007b) means that they fail in the long term, as there is little ownership of such measures and therefore limited opportunity for course correction where such measures fail to have the expected impact.6 The epoch of the Anthropocene requires a radical rethinking of present 2 Directive

Principles of State Policy is incorporated as Part IV of the Constitution of India. It lists down a charter of principles which is fundamental to the governance of India. it includes values like social justice, equal pay for equal work, promotion of cooperative societies and the uniform civil code. Unlike fundamental rights in Part III of the Constitution, these principles are not justiceable— meaning that they cannot be enforced by any Court. 3 This is similar to the doctrine of political question as is practiced by the US Courts. The Supreme Court has also been reluctant to stop developmental projects on grounds of environmental violations. It has repeatedly fallen back on fait accompli which has allowed developmental projects to be regularized (regularization of irregularity) even in the face of willful violation of environmental norms by paying fines/environmental compensation. 4 Pure brown pollution issues refer to environmental pollution of land, air and water. 5 M.C. Mehta v. Union of India (Delhi vehicular air pollution case) (2001) 3 SCC 763; the Supreme Court directed the gradual phasing out of other fuels like diesel and petrol and conversion of such vehicles into those run on Compressed Natural Gas (CNG). 6 The prime example of this is the air pollution in Delhi in which the Court ordered all public transport to convert into CNG fuel to reduce pollution, however the gains from such reduction was outweighed by the massive increase in private vehicles. So in fact this essentially also does not fundamentally challenge the business as usual approach which is at the heart of the current challenge that the anthropocene poses.

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practices, institutions and standards (Bennett et al. 2016). More fundamentally, it requires us to accept that sustainability cannot be achieved without also addressing the equity in access to resources and opportunities (Leach et al. 2018). Environmental pollution should not only be conceptualized as a public bad to be prohibited by the State or as a series of public goods (clean air and clean water) to be delivered by the State. Environmental pollution is caused primarily by private persons and it should be framed as infractions or legal violations. The aim of the judiciary should be to strengthen mechanisms by which common citizens can access statutory remedies to address environmental violations. This has been discussed in the following illustration. The Water (Prevention and Control of Pollution) Act 1974 and the Air (Prevention and Control of Pollution) Act 1981 (Water Act and the Air Act in short) are the two fundamental statutes that address water and air pollution in India. The Central and State Pollution Control Boards have been established as the statutory authority to anticipate and prevent air and water pollution in India by ensuring a strict licensing regime for point source of pollution. Section 43 of the Air Act and Section 49 of the Water Act are similar provisions that create a bar on the cognizance of offences by the Court. It allows the Court to only take cognizance of offences under these statutes, only when a complaint is filed by the Central or the State Pollution Control Boards (Boards). The Court can take account of public complaints as well, however a 60 day notice is required. Moreover, the Boards may refuse report of the water sample (evidence to provide pollution) on public interest grounds. Further Section 46 of the Air Act and Section 58 of the Water Act additionally bar the jurisdiction of the civil court to entertain any suit or proceedings with respect to any matter which the Appellate Authority constituted under the respective Acts are empowered to determine. This makes it inordinately difficult for conscientious citizens to access statutory remedies to address water and air pollution. Admittedly there have been instances in which the Court has questioned and has circumscribed the legal effect of such an unreasonable legislative bar. In Sreenivasa Distilleries vs. S.R. Thyagarajan And Ors,7 the Andhra Pradesh High Court stated (Para 4) that Section 58 of the Water Act does not create a bar on any civil court from entertaining any suit or proceeding from restraining any person from causing water pollution. Thus, without explicitly reading down the said provisions, the High Court created an avenue for petitioners to access legal remedies to address environmental harm. The same legal rationale was followed by the Madras High Court in A.R. Ponnusamy v. Thoppalan8 vis-à-vis Section 46 of the Air Act. However, such instances have been few and far between. The Court could have substantially expanded access to remedies under specific legislation addressing pollution control as it did in these two cases. This would have allowed general public to move the Pollution Control Boards, failing which they could have challenged inaction by the Boards in the Appellate Bodies. However these cases have sadly remained anomalies and highlight the road not taken.

7 AIR

1986 AP 328. SCC Online Mad 230.

8 2003

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Let us now explore three cases in which the SC’s reliance on Constitutional jurisprudence to address environmental harm limited the search for remedies and in effect failed to adequately address the problem. The Oleum Gas leak case is celebrated be academicians as representative of the Court’s willingness to pursue environmental violations on a war footing. But, it also highlights the Court’s unwillingness to address more pertinent questions like the standard of care, the burden of proof for environmental harm and develop an effective remedy for inter se violations. The Vellore Citizen’s welfare forum case illustrates the limitations in pursuing a compensation claims based litigation strategy to address environmental harm. Finally, the Godavarman case represents how the unilateral pursuance of a polluter pays strategy actually creates a perverse incentive for committing environmental harm and ends in abetting and aiding environmental degradation.

14.3 The Oleum Gas Leak Case The Oleum Gas Leak case,9 involved emission of hazardous substances from the premises of a private enterprise—Shri Ram Foods and Fertilizers. The matter was referred to a constitutional bench of the SC, which then had to decide whether a private enterprise can be sued for a violation of a fundamental right (the right to clean air). Fundamental rights violations are only justiciable against the State—therefore Shri Ram Foods and Fertilizers would have to be interpreted as the State (defined under Article 12 of the Constitution). The Court shied away from making any such pronouncement given that it was impossible to make a positive finding that Shri Ram Foods and Fertilizer could be sued as a State for violation of a fundamental right. This was an opportunity for the Court to fashion a new remedy in the case of horizontal violations10 of fundamental rights specifically resulting in environmental harm inter se between non-state actors, instead it focused attention on establishing the rule of absolute liability for enterprises undertaking hazardous or inherently dangerous activity—which incidentally it did not apply to private enterprise (Shri Ram) in this specific case. To date invoking a fundamental right to pursue inter se environmental violations remains a judicial innovation that is enthusiastically discussed amongst commentators (Abraham and Sushila 1991; Mehta 1999). The holding has however, found limited application in actual cases of environmental harm,11 since there it operates on the pre-requisite that there has to be a legal finding that specific statutory violations 9 1987

SCR (1) 819.

10 By horizontal violations I mean violations between two private persons. Vertical violations refers

to those between the State and citizen. 11 For e.g. see Deepak Nitrite Ltd. v. State of Gujarat (2004) 6 SCC 402 where the Court held that “mere violation of the law in not observing the norms would result in degradation of environment is not correct”. Although subsequently the Court in Research Foundation for Science, Technology and Natural Resource Policy v Union of India and Ors (2005) 13 SCC 186, did say that the observations made in Deepak Nitrite is limited to facts of the case and that it has no precedential value.

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have led to environmental degradation. This necessarily requires establishing a causal link between violations committed and the resulting environmental damage or degradation or even specific personal injury resulting from the former. This causal link is very difficult to prove in environmental litigations, thus placing a very high burden on the petitioner. Furthermore the unwillingness of the Court to award exemplary damages until it is established that the person intended to cause environmental harm also creates an impossibly high evidentiary burden on the petitioner and in effect also allows violators to pay and pollute.12 The Court could have better built this remedy if it were to also fashion possibly a standard of care between private persons or allow for greater clarity in terms of what is the role of the State Pollution Control Boards in such cases of environmental harm—perhaps to undertake preliminary investigation into harms and provide injunctive relief.

14.4 The Vellore Citizen’s Welfare Forum Case The Vellore case involved large scale water pollution of the Noyyal River (specifically in five districts of the State of Tamil Nadu) and adjoining agricultural lands. This pollution stemmed from the untreated effluent from more than 900 leather tanneries.13 The Supreme Court noted that despite statutory provisions under the Environment (Protection) Act 1986 and the Water Act, the statutory authorities failed to take any preventive or remedial action in this case. The Supreme Court imposed a Rs. 10,000 fine on each tannery, with the direction the funds would be deposited in an Environment Protection Fund which would be utilized to compensate affected persons and to undertake remedial action. The Court ordered the establishment of common effluent treatment plants or individual pollution control devices. Further, it directed the Central Government to establish an authority to administer the Fund and review the claims for compensation. Following this the Loss of Ecology (Prevention and Payment of Compensation) Authority (LOEA) was established by the Ministry of Environment and Forests.14 The LOEA functioned as a quasi-judicial body under the overall supervision of the MOEF.15 The Supreme Court transferred this case to 12 See Research Foundation for Science, Technology and Natural Resource Policy v Union of India and Ors (2005) 13 SCC 186 where the Supreme Court refused to levy penal or exemplary damages in the absence of any finding on the nature and extent of offending activity, nature of offending party and the intention behind such offending activity. This is also revealing of the Court’s unwillingness to take specific measures in the absence of clear causal link between the violations committed, the violator’s intention and the resulting environmental damage. 13 (1996) 5 SCC 647. 14 MOEF issued a notification S.O. 671 (E) dated 30 September 1996 constituting the Loss of Ecology (Prevention and Payments of Compensation) Authority under Section 3(3) of the Environment (Protection) Act, 1986—for the State of Tamil Nadu for a period of 2 years (the term has been routinely extended in successive court judgments). 15 The LOEA had to send regular progress reports to the MOEF and the ministry exercised the power to appoint chairpersons of the LOEA.

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the Madras High Court as a petition under Art. 226 of the Constitution of India since it would be in a better position to monitor the case. It also requested it to constitute a Green Bench to monitor the compliance with directions issued by the Supreme Court. In 2016, the Madras High Court ordered16 the winding down of the Loss of Ecology Authority (LOEA) two decades after the Supreme Court had ordered its establishment. At the time of the winding down there were around 28,000 claims pending with the LOEA.17 The Madras High Court ordered the claims to be transferred to the National Green Tribunal (NGT) and given the scale of claims18 ; the government gave an assurance that an additional bench of the NGT will be established in Chennai to consider these claims and that no limitation period will be applied to filing of claims. At the time of winding down, there were around 28,000 claims pending with the LOEA, which now stands transferred to the Chennai Bench of the NGT. Interestingly, the NGT Bench in Chennai has been rendered non-functional since October 2017 due to lack of quorum owing from non-appointment of judicial officers and expert members by the Central Government.19 Despite functioning for two decades, the LOEA was hobbled by lack of administrative support from the MOEF which made it difficult to provide relief to claimants. The very fact that there are still 28,000 petitions pending underlines the LOEA’s failure to provide a quick and accessible remedy to victims of environmental damage as was originally envisaged by the Supreme Court. Faced with the failure of statutory authority (in this case the Tamil Nadu Pollution Control Board), the Supreme Court chose to intervene by directing the executive to establish yet another statutory authority to adjudicate claims, which incidentally functioned for over two decades without bringing to closure the substantial number of claim petitions primarily due to lack of adequate administrative support from the Central Government20 and also the failure to develop adequate tools for assessment of environmental damage and award of compensation (Venkatachalam 2005).21 16 Vellore

Citizens Welfare Forums v. Union (2016) SCC OnLine Mad 1881. of the reasons for the expansion of the claims was the Madras High Court judgment in K.K Subramaniam v. Loss of Ecology Authority [(2010) 3 MLJ 1087] wherein it had ordered for the claims to be considered individually. 18 It should be noted that as per the National Green Tribunal Act (2010), the Principal bench of the NGT is in New Delhi, and there were to be four zonal benches established at Bhopal, Pune, Kolkata and Chennai as per MOEF Notification S.O. 1908(E). dated 17 August 2011. However till 2016, there was functional Bench operating in Chennai and therefore the Madras High Court had asked for an assurance from the Central Government that the Chennai Bench will be established shortly. 19 See The New Indian Express; http://www.newindianexpress.com/cities/chennai/2018/may/ 26/chennai-national-green-tribunal-bench-defunct-since-january-after-lone-members-retirement1819646.html. Accessed 12 October 2018. 20 See for instance the Madras High Court order directing the Central Government to appoint a Chairperson for the LOEA. See The Economic Times; https://economictimes.indiatimes.com/news/ politics-and-nation/appoint-chairman-to-state-loss-of-ecology-authority-in-1-month-madras-highcourt/articleshow/45442424.cms. Accessed 12 October 2018. 21 It should however be mentioned that the LOEA did award Rs. 69.35 crore as compensation to 90,010 farmers in Tamil Nadu and reversal schemes worth 165.63 crore to various districts in the last two decades. 17 One

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This again highlights those efforts to address environmental harm by establishing a multiplicity of institutions is a failed strategy. The Court could have used this opportunity to strengthen existing regulatory institutions through expanding their powers to grant injunctive relief, deepened the role of the victims in monitoring not only compensation claims but also environmental remediation measures and expanded the standard of care requirements for the tanneries. The challenge in the Anthropocene requires us to build unprecedented coalitions between regulators and all groups of affected parties towards collective action.

14.5 The Godavarman Case The Godavarman case is the longest running environmental case in the Supreme Court and has been kept open as a continuing mandamus since 1995.22 The case involves timber felling and deforestation. The Court has had the opportunity to consider a wide range of aspects, viz. such as pricing of timbers, mining within forests, transportation of timbers, distribution of forests revenue. One of the key administrative problems identified by the Court, is the lack of administrative distance between Ministry of Environment and Forests and the Expert Advisory Committee (one of the key expert bodies that reviews environmental impact assessment reports and recommends environmental clearance for projects to the government). The administrative distance between these two institutions is also cited by the Court as a reason for ad-hocism and non transparency in environmental regulation in India. The Court ordered the MOEF to appoint an independent environmental regulator under Section 3(3) of the Environment (Protection) Act 1986 (India) (‘EPA’). However, the suggested legal basis for appointment of a regulator suffers from a serious limitation. Section 3(3) of the EPA empowers the Central Government to delegate authority to a separate body that is ‘subject to the supervision and control of the Central Government’. Thus, any regulatory body set up under this legal provision must necessarily function under the administrative control of the MOEF. It is therefore ironic that the Supreme Court’s search for an independent (of executive control) environmental regulator should rely on the very same legal provision for its establishment. It would be more appropriate to legislate under Article 253 of the Constitution23 to constitute a separate environmental regulator. Article 253 has been previously relied upon by the Parliament to legislate a host of environmental legislations (Air Act, EPA and the National Green Tribunal Act 2010). However it would be beyond the remit of 22 WP No. 202 of 1995,

T.N. Godavarman Thirumulpad v. Union of India, Supreme Court of India.

23 Art 253—of the Constitution. It empowers the Parliament to enact laws to implement ‘any decision

made at any international conference’. India’s participation in decisions taken at the United Nations Conference on the Human Environment in Stockholm in June 1972 and the follow-up conferences in Rio in 1992 and 2012 could provide a reasonably substantive justification for the Parliament to enact separate legislation establishing a national environmental regulator that is independent of executive authority.

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the Supreme Court to suggest that the Parliament use its competence under art 253 to establish a national environmental regulator (Chowdhury 2014). The other result has been the complete centralization of forest regulation through establishment of the Central Empowered Committee (CEC), the adoption of the polluter’s pays principle model has meant that instead of the reduction of diversion of forest for non-forest purposes, natural forests have been rendered thoroughly monetized through the deposition of net present value and payment for compensatory afforestation. In fact the scale of monies deposited for the diversion was so enormous, that the government had to enact the Compensatory Afforestation Fund Act (2016) to constitute an authority at the national and state levels to manage the funds collected. This has drawn criticism from environmental activists who argue that Supreme Court’s intervention has in fact facilitated the creation of a centralized mechanism for destruction of natural forests and is in direct conflict with The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act (2006) which seeks to devolve forest governance to forest dwelling scheduled tribes and other forest dwellers (Choudhury and Singh 2016). One would have expected that with the Court actively adjudicating disputes and monitoring the implementation of its orders through the CEC, at least some of the outstanding issues in forest regulation would have been addressed. Far from so, adjudication has dragged on for than two decades with no end in sight. Again in this case, the Court’s pursuit of polluter pays principle, has resulted in enormous collection levies which has in effect created perverse incentive for destruction of forests. This case highlights the limitations of over-centralization in environmental regulation.

14.6 Conclusion The Supreme Court of India’s obsessive pursuit of constitutional remedies has meant that other statutory remedies which are relatively easy to access like statutory remedies available under the Water Act and the Air Act have not been adequately explored or supported. Further, in most cases interventions have led to the creation of a multiplicity of authorities which have lacked institutional support and therefore failed to deliver environmental justice to victims of environmental pollution. The continued emphasis on the polluter pay principle in the absence of robust methodologies for establishing causality for environmental damage or new evidentiary rules for establishing intention of the polluter to pollute has meant that in reality the approach facilitated payment of monies to pollute. This has thus impeded efforts to arrest environmental degradation through remediation and restoration. Institutionally, the Supreme Court needs to build collaborations with other national regulators such as the National Human Rights Commission (NHRC) and the National Commission for Women in co-opting such bodies it to monitor and report environmental violation. This is because it is well established that environmental degradation disproportionately affects the poor and the vulnerable. The Supreme Court,

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also needs to allow for greater de-centralization and recognition of municipalities and panchayats in enforcing and monitoring of conditions for grant of environmental impact assessment. This would be a great first step towards strengthening the principle of subsidiarity in environmental governance, rather than in centralizing decision-making, monitoring and enforcement. It should direct its attention towards strengthening existing regulatory institutions like the pollution control boards and strengthen their mandate in devising new reliefs like injunctions and in pursuing more precautionary measures in intervening early enough in case of potential pollution. Finally, it is critical for the Court to educate itself on the challenge of the Anthropocene in abandoning the polluter pays principle and facile trade-offs between environment and development. The challenge of the Anthropocene should be a moment of reflection for the Supreme Court in abandoning the business as usual approach to environmental protection and in being more inquisitive and exploratory in its approach and unconstrained by its constitutional role. Acknowledgements This paper is based on two presentations made at Journey of the Indian Constitution: We the People and Free Markets: Colloquium in honour of Professor M.P. Singh at NLU Delhi on 19 September, 2015 and at the Roundtable Discussion on Environmental Regulation in India organized by Vidhi Centre for Legal Policy, at IIC on 20 September, 2017. I am grateful to Dr. Prabhash Ranjan, Dr. Dhvani Mehta and the participants in both these events for their comments. Editorial comments from Dr. Michelle Lim, greatly improved this chapter.

References Abraham CM, Sushila A (1991) The Bhopal case and the development of environmental law in India. Int Comp Law Q 40(2):334–365 Bennett EM, Solan M, Biggs R, McPhearson T, Norstrom AV, Olsson P, Pereira L, Peterson GD, Raudsepp-Hearne C, Biermann F, Carpenter SR, Ellis EC, Hichert T, Galaz V, Lahsen M, Milkoreit M, Lopez BM, Nicholas KA, Preiser R, Vince G, Vervoort JM, Xu J (2016) Bright spots: seeds of a good anthropocene. Front Ecol Environ 14(8):441–448. https://doi.org/10.1002/fee.1309 Choudhury C, Singh N (2016) The compensatory afforestation bill should not be passed in its current flawed form. The wire. https://thewire.in/rights/compensatory-afforestation-bill-not-passedcurrent-flawed-form. Accessed 2 Nov 2018 Chowdhury N (2014) From judicial activism to adventurism: the Godavarman case in the Supreme Court of India. Asia Pac J Environ Law 17(1):177–190 Leach M et al (2018) Equity and sustainability in the anthropocene: a social–ecological systems perspective on their intertwined futures. Glob Sustain 1(e13):1–13. https://doi.org/10.1017/sus. 2018.12 Mehta M (1999) Growth of environmental jurisprudence in India, Acta Juridica, pp 71–79 Rajamani L (2007a) The right to environmental protection in India: many a slip between the cup and the lip? RECIEL 16(3):274–286 Rajamani L (2007b) Public interest environmental litigation in India: exploring issues of access, participation, equity, effectiveness and sustainability. J Environ Law 19(3):293–321

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Rosencranz A, Batra M (2018) The supreme court of India on development and environment from 2001 to 2017. Environ Law Pract Rev 6:1–28 Ventakachalam L (2005) Damage assessment and compensation to farmers: lessons from verdict of loss of ecology authority in Tamil Nadu. Econ Polit Wkly 40(15):1556–1560

Chapter 15

Liability for Environmental Harm as a Response to the Anthropocene Jacob Phelps, Carol Adaire Jones and John Pendergrass

Abstract The Anthropocene is often framed in terms of understanding and mitigating large-scale human-induced environmental change. However, facing unprecedented planetary transformations, the differentiated impacts that global environmental change has across communities, species, time and place must not only be considered and characterised, but actively remedied. Instruments that help reconcile related inequities and facilitate our daily existence within injured environments are also essential. We argue that ‘liability for environmental harm’ provides a critical, if under-utilised and challenging, legal response to the Anthropocene. Keywords Remedies · Sanctions · Environmental justice · Deterrence · Law suit · Restoration

15.1 The Anthropocene and Environmental Rule of Law The Anthropocene narrative highlights the ways in which contemporary resource extraction, pollution and biodiversity loss from human activities are fundamentally reshaping Earth systems (Steffen et al. 2007; Dirzo 2014). For example, recent estimates suggest there are 1–6 billion hectares of degraded land, affecting the wellbeing two fifths of the global population, including their food security, access to clean water and energy (Gibbs and Salmon 2015; Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Service 2018). These realities increasingly characterise daily life in the Anthropocene. It is necessary to conceptualise the Anthropocene not only in terms of the nature of human-induced environmental change (Rockstrom et al. 2009), but also in terms of its J. Phelps (B) Lancaster Environment Centre, Lancaster University, Lancaster, UK e-mail: [email protected] C. A. Jones · J. Pendergrass Environmental Law Institute, Washington, DC, USA e-mail: [email protected] J. Pendergrass e-mail: [email protected] © Springer Nature Singapore Pte Ltd. 2019 M. Lim (ed.), Charting Environmental Law Futures in the Anthropocene, https://doi.org/10.1007/978-981-13-9065-4_15

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differentiated impacts across communities, species, time and place (Houston 2013; Gentle et al. 2014; Takkis et al. 2018). Although the Anthropocene narrative itself has not been widely embraced by environmental justice and social activist movements (Di Chiro 2016), an environmental justice view of the Anthropocene is nevertheless critical. This is because environmental harm and risks often disproportionately affect marginalized communities, future generations and natural systems that have limited formal recourses for remedy (Walker 2012). Environmental law faces unprecedented challenges to uncover and remedy the differentiated impacts of the Anthropocene on different members of society. Legal frameworks and safeguards form central parts of our ability to navigate daily life in the Anthropocene—particularly where they serve to uphold environmental rights and obligations that “materially and imaginatively situates environmental crisis in everyday terms, as something that we live with and strive to transform” (Houston 2013). Indeed, an environmental ‘rule of law’ perspective is instrumental to our response to the Anthropocene (Bai et al. 2016; International Union for the Conservation of Nature 2016) because it provides “the legal framework of procedural and substantive rights and obligations that incorporates the principles of ecologically sustainable development in the rule of law” (International Union for the Conservation of Nature 2016). It helps to ensure that environmental rights are more dependably, predictably and evenly upheld, which is instrumental to meeting domestic and international environmental commitments (United Nations Environmental Programme 2012). It is unsurprising that ‘rule of law’ is prominent within the Sustainable Development Goals (Goal #16, SDG 2018). The pathways through which rule of law might help to address contemporary sustainability challenges are often left tacit. For example, strengthened enforcement of environmental laws and generic improvements towards “good governance” are broadly assumed to improve outcomes. However, better articulating these pathways is central to communicating the role that rule of law can play (cf. Biggs et al. 2017). Liability for environmental harm is potentially unique among environmental legal approaches because, by holding responsible parties accountable for the harm they cause, it provides both deterrence and corrective justice functions. In this chapter, we introduce a broad understanding of liability for environmental harm, including its origins in US legislation and the emergence of liability statutes in a number of other countries. We then discuss important of liability for environmental harm to environmental sustainability, through its potential to help deter future harm and its unique ability to help remedy to existing harm. We conclude by acknowledging the challenges to widening the implementation of liability statutes, but argue for its growing importance to everyday life in the Anthropocene.

15.2 Liability for Environmental Harm Liability suits can involve a range of legal actions, including private actions (torts) in which victims seek compensation from perpetrators of environmental harm; suits

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against government agencies that may have failed to operationalise their responsibilities in ways that result in environmental harm, and public suits that hold perpetrators broadly responsible for harming public resources. Across these types of legal actions, liability statutes hold individuals, companies and government agencies responsible for the environmental damage they cause. Liability suits thus serve to operationalise the polluter pays principle, which makes liability for environmental harm unique among legal instruments, and has broad implications for the sustainability agenda (Abelkop 2013). These statutes actively consider the scales of harm caused, and can articulate costs and/or actions important to ensuring their meaningful remedy. They can allow judges to order actions such as the restoration or the replacement of injured resources; financial compensation to State agencies or individual victims, and measures such as apologies and investments into educational and cultural programmes. Statutes imposing liability for environmental harm have strong origins in the United States, largely in response to oil and toxic chemical pollution during the 1970 and 1980s (Jones and DiPinto 2018). The principle underlying the measure of damages in the United States is to “make the public whole”, ordering actions that help the injured parties return to a state they experienced before they suffered environmental injuries, via both public and private (tort) suits. They have been operationalised in response to leading environmental catastrophes, including the 2010 BP Deepwater Horizon oil spill, the largest marine oil spill in U.S. history, which yielded public and private suits for environmental liability totalling more than US$60 billion (Vaughn 2018). Liability for environmental harm statutes now exist across many countries, with many adopting principles similar to the United States, and others innovating (Jones et al. 2015). Importantly, the emergence of liability statues internationally creates new opportunities for their application to a wide range of global and pressing contemporary sustainability issues such as deforestation, toxic dumping, mining and wildlife trade (Jones et al. 2015). Many countries have adopted related rules in recent years, including the European Union (2004 Environmental Liability Directive), Mexico (2013 Federal Environmental Liability Act) and Indonesia (Law No. 32/2009). Statutes vary across jurisdictions and legal systems (Jones et al. 2015), but reflect a widespread recognition that holding perpetrators legally and financially responsible for the scale of environmental harm they commit is important to future sustainability—perhaps increasingly in the context of the realities of the Anthropocene.

15.3 Deterring Future Environmental Harm Liability statutes can dramatically increase the financial burdens on perpetrators of environmental harm. Orders to fund the restoration or replacement of injured resources and/or the compensation to victims can result in the allocation of substantial sums of money and resources. Evidence from the United States suggests that strict environmental monitoring and enforcement, including private and public liability suits for environmental harm, have

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yielded important deterrence effects, such as reducing the frequency and severity of toxic spills (reviewed in Gray and Shimshack 2011; Abelkop 2013). Although there is conflicting evidence on the relationship between the scale of financial sanctions and behaviour, it is widely recognised that the criminal sanctions and fines typically levied for environmental harm are often too low to serve as meaningful deterrents (Akella and Cannon 2004; White 2010; Borner et al. 2014). As a result, the increased burdens enabled through liability for environmental harm may prove important, especially in contexts where large-scale environmental injuries have turned huge profits (e.g., illegal commercial exploitation of fish, timber, other wildlife, mineral resources; e.g., Nellemann et al. 2016). Deterrence as a result of liability rules may be a function not only of financial costs, but also of social sanctions and reputational damage. Suits involving liability for harm, which can explicitly expose the nature and extent of injuries, can be powerful for raising visibility and stimulating public concern (Greyl and Ojo 2013). Public exposure, such as during a trial, can be a powerful factor in motivating behavioural change (Almer and Goeschl 2010). Importantly, the success of individual cases can catalyse future legal actions, as legal systems become proficient in using these statutes, and prospective plaintiffs begin to recognize them as viable legal options for remedying injuries. This is the case in the United States, where natural resource liability suits have become a standard part of the legal toolkit. This feedback means that liability suits can increase not only the level of burdens on perpetrators, but also the celerity and certainty of them, which are essential parts of ensuring deterrence (Nagin et al. 2018). This is critical to shifting standards of behaviour away from unsustainable and illegal behaviours. Indeed, deterrence as a result of enforcement affects not only the behaviour of individual perpetrators sanctioned, but also that of others in the sector (Gray and Shimshack 2011).

15.4 Remedies Following Environmental Harm In holding perpetrators responsible, liability suits also serve corrective justice functions, providing a range of remedies for environmental and social injuries. In the United States, the statutes generally require that recoveries be invested in resource restoration (Jones and DiPinto 2018). Measures of damage are usually calculated as the cost of projects to restore or replace the injured resources, plus the cost of restoration projects to compensate for the interim losses in value (of market and nonmarket values) from the time of the incident until full recovery (Ibid.). An alternative approach for the second component is to calculate the value of interim losses using economic valuation techniques (e.g., contingent valuation, market values). Other countries vary in whether they have one or both components—the costs of restoring or replacing injured resources and the interim losses (Swanson and Kontoleon 2003; Jones et al. 2015). These remedies potentially provide new sources of finance for environmental restoration, whether clean-up of hazardous material, reclamation of mining

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sites, species reintroductions and/or reforestation—activities traditionally either left unremedied or addressed by the state using public funding. Given both the importance of such remedies in the context of widespread contemporary environmental harm, and their potentially high public costs, legal measures that increase access to funds are increasingly important. Moreover, by shifting the cost of remedies back onto the perpetrators of harm, liability statues serve an important justice function. Suits can also enable non-monetary remedies, including symbolic actions such as apologies, and investments that enable cultural and educational activities affected by environmental harm. Although these types of actions may not always involve high financial payouts, they can enable corrective actions with profound implications for the places and people affected (McLeod 2000; Gregory and Trousdale 2009). This can potentially include alternative value systems, non-Western ontologies, and traditional knowledge that are increasingly recognized as important to improving sustainability (e.g., Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES); Pascual et al. 2017). However, work is still needed to recognise how these can be better recognised by the courts and incorporated into damage claims, which have traditionally focused narrowly on economic value. Public liability suits can complement private causes of action in tort brought by individuals, communities or groups for lost property value or income for damage resulting from environmental harm. For example, under private suits, farmers or fishers can potentially recover economic losses from harm to the natural resources on which they rely, as could tourist hotels, tour operators, and potentially even their employees (dependent on national legislation and practise). Liability statutes that enable these forms of private compensation are important to remedying not only the environment, but also individual victims—including those members of society who are disproportionately affected. Increasing access to the courts and legal counsel, and ensuring that diverse values are adequately recognised, remains a challenge.

15.5 The Challenges to Operationalising Liability for Environmental Harm Despite the prevalence and recent promulgation of these types of statutes, there is surprisingly little evidence of their widespread implementation, likely due to lack of experience and technical challenges inherent to these cases (Jones et al. 2015; Swanson and Kontoleon 2003). Outside of the United States, Indonesia stands out as an important exception, and has used liability for environmental harm in response to cases of topical deforestation and peatland fires, caused by draining and burning peatland for industrial agriculture (Phelps et al. 2014). There have been at least 13 related cases since 2013 which, despite a range of legal and technical challenges, reveal the ways in which liability statutes can levered to challenge a broader range of large-scale environmental harm common in the Anthropocene (Farjani and Sembiring 2018). The use of liability statues in other countries and ecosystem and to

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address different types of environmental harm, as well as the rapid increase in use of these statues in Indonesia, illustrates their broad potential. However, even where environmental harm has clearly occurred and there is broad recognition that harm should be sanctioned, it can be challenging to characterise that harm and articulate appropriate remedies. Defining a damage claim is central to these legal processes, but remains a leading challenge in many countries and ecosystems (White and Heckenberg 2011). It requires, for example, complex translations of environmental restoration science and cultural harm into damage claims that can be recognised in court. Articulating these various injuries into damage claims that reflect actual justice needs on-the-ground is not a purely technical question. Just as the Anthropocene pushes us to consider “what are the futures that we want?” (Bai et al. 2016), liability suits require us to enquire “what is needed in order to remedy harm, in support of the futures we want?”, within the constraints of national legal frameworks, resources and capacity. Indeed, one of the challenges of transitioning to sustainable and equitable futures in the Anthropocene “is that of combining abstract, theoretical and systemic knowledge with contextual and place-based understandings” (Bai et al. 2016). Developing meaningful damage claims requires statutes that are complete in their conceptualization of environmental harm. Indeed, many countries have adopted legal notions of environmental harm that are more expansive than those traditionally employed in the United States (Jones et al. 2015). This includes recognition for the various types of environmental harm (e.g., including non-market goods and passive use values), and the various pathways along which harm can occur, including indirect causal links and impacts at different spatial and temporal scales. Indeed, there remains uncertainty about how liability suits might contend with harm to biodiversity; the downstream social and ecological injuries that result from certain types of harm, and the scales at which harm should be recognised (Swanson and Kontoleon 2003; Phelps et al. 2014; Gregory and Trousdale 2009; Farjani and Sembiring 2018). Moreover, operationalizing liability requires regulations and guidelines that provide technically and economically feasible, specific and accessible information on how to establish damage claims for environmental harm. There are a number of technical barriers, particularly in countries with limited existing datasets to fairly, accurately and affordably quantify and value harm, and to develop restoration projects that adequately compensate for it. There is a need to establish appropriate methods and datasets to enable quantification of damages claims in liability suits, whether these seek to directly measure harm (e.g., via economic valuation methods), or to define actions needed to remedy harm (e.g., restoration; Jones et al. 2015). Efforts to strengthen damage claims must also consider the broader practicalities of operationalizing liability suits, to ensure they do not create unreasonable barriers to justice, or result in confusing, contested or overly-expensive methods (Swanson and Kontoleon 2003). There are a range of approaches that have the potential to streamline these types of suits and reduce related transaction costs. These include the use of new databases; use of benefit transfer methods (European Union 2000; Phelps et al. 2015), and damage claims that focus on the costs of restoration rather than direct economic valuation of the environment (Jones and DiPinto 2018).

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Further, it requires institutions with the human and financial resources, and appropriate capabilities, to execute damage claims and liability suits. This includes judges, prosecutors and agency officials who recognise environmental harm and the potential for liability suits to provide valuable remedy. Similarly, there is a need to build awareness and capacity among civil society and citizens, who in many countries are empowered to file liability suits, both as individuals and on the behalf of the public. Moreover, there is a need to ensure that the communities disproportionately affected by the impacts of the Anthropocene have access to the judicial system. Improved access will require new forms of collaboration, including between lawyers in industrialised countries and affected communities, similar to those that are emerging in the climate litigation arena.

15.6 Liability in the Future Environmental Law Liability in the United States has traditionally focused on a comparatively narrow range of contexts—oil and toxic chemical pollution and harm to specific protected resources. However, other countries have created statutory authority that spans a much broader range of environmental harms. This includes landmark liability suits targeting deforestation in Indonesia and India (Jones et al. 2015). Building on these examples, there is a need to identify how to best strengthen and operationalise these statutes to better contend with leading sustainability challenges globally. Liability suits for environmental harm can potentially serve an important space between the mainstream story-telling about the Anthropocene, formal institutions, and environmental justice movements (Di Chiro 2016). This is true where liability suits are used to provide formal legal remedies to the environmental harm (injustice and racism) that has become so common. Despite challenges to implementation, the prospective benefits are profound. Strategic use of liability suits (e.g., applied in cases of egregious harm or repeated non-compliance) have the potential to shift practices across sectors and communities. They can communicate a sense of deep financial and reputational repercussions among prospective violators that can shift behaviours. Concurrently, government agencies, community and civil society groups may feel empowered by suits that yield meaningful accountability, secure resources for restoration and/or other forms of remedy. Moreover, the broader public can gain an understanding of the scales and nature of environmental harm and associated responsibilities. Addressing environmental externalities is an important part of responding to the Anthropocene. While stakeholders may chose to participate in voluntary schemes to internalize these costs, such as the Roundtable of Sustainable Palm Oil, in which stakeholders throughout the supply chain commit to sustainable palm oil, prior experience clearly demonstrates the importance of regulation, enforcement and liabilities. Statutes that enable liability for environmental harm provide a tangible mechanism through which to ensure that polluters assume greater responsibility for large-scale environmental harm. This may seem modest and incremental in the context of rapid

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environmental change: the Anthropocene phenomenon compellingly elicits greater action, novel strategies and new technologies at scale, with responses such as radical geo-engineering; transformations to our energy, extractive and production systems, and reconceptualisations of human relationships with the environment (Steffen et al. 2011; Bai et al. 2016). By comparison, efforts to strengthen environmental governance fit poorly within a crisis Anthropocene narrative. Yet, the rule of law underlies many of the more radical associated transformations, and efforts that adjust the burdens of environmental externalities are important to operating within ‘planetary boundaries’ (Rockström et al. 2009) and fostering new forms of stewardship (Steffen et al. 2011). Environmental harm is, increasingly, a part of everyday life, and will remain a central concern and barrier to sustainable and just development. However, in most regions, we can also anticipate growing demands for greater democratic accountability and strengthened rule of law in aid of environmental justice (Kaufmann and Kraay 2015). This is developing alongside increased access to information, new international collaborations, and new forms of monitoring that can help improve accountability. Against this background, liability suits for environmental harm provide an increasingly appropriate tool with which to respond to the Anthropocene.

References Abelkop ADK (2013) Tort law as an environmental policy instrument. Or Law Rev 92:381–467 Akella AS, Cannon JB (2004) Strengthening the weakest links: strategies for improving the enforcement of environmental laws globally. Center for Conservation and Government, Conservation International, Washington, DC. https://www.oecd.org/env/outreach/33947741.pdf. Accessed 9 Nov 2018 Almer C, Goeschl T (2010) Environmental crime and punishment: empirical evidence from the German Penal Code. Land Econ 86:707–726 Bai X, Van Der Leeuw S, O’Brien K et al (2016) Plausible and desirable futures in the anthropocene: a new research agenda. Glob Environ Change 39:351–362 Biggs D, Cooney R, Roe D et al (2017) Developing a theory of change for community-based response to illegal wildlife trade. Conserv Biol 31:5–12 Borner J, Wunder S, Wertz-Kanounnikoff S et al (2014) Forest law enforcement in the Brazilian Amazon: costs and income effects. Glob Environ Change 29:294–305 Di Chiro G (2016) Environmental justice and the anthropocene meme. In: Gabrielson T, Hall C, Meyer JM et al (eds) The Oxford handbook of environmental political theory. Oxford University Press, pp 362–383 Dirzo R, Young HS, Galetti M et al (2014) Defaunation in the anthropocene. Science 345:401–406 European Union (2000) White paper on environmental liability (Com (2000) 66). http://ec.europa. eu/environment/legal/liability/pdf/el_full.pdf. Accessed 9 Nov 2018 Farjani R, Sembiring R (2018) Indonesia judicial training: economic valuation, restoration and compensation in environmental litigation. Final report for the Environmental Law Institute. Indonesian Centre for Environmental Law, Jakarta, Indonesia Gentle P, Thwaites R, Race D et al (2014) Differential impacts of climate change on communities in the middle hills region of Nepal. Nat Hazards 74:815–836 Gibbs HK, Salmon JM (2015) Mapping the world’s degraded lands. Appl Geogr 57:12–21

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Gray WB, Shimshack JP (2011) The effectiveness of environmental monitoring and enforcement: a review of the empirical evidence. Rev Environ Econ Policy 5:3–24 Gregory R, Trousdale W (2009) Compensating aboriginal cultural losses: an alternative approach to assessing environmental damages. J Environ Manage 90:2469–2479 Greyl L, Ojo GU (eds) (2013) Digging deep corporate liability: environmental justice strategies in the world of oil. Environmental Justice Organisation, Liability sand Trade report 9. http://www. ejolt.org/2013/10/digging-deep-corporate-liability-report. Accessed 9 Nov 2018 Houston D (2013) Crisis is where we live: environmental justice for the anthropocene. Globalizations 10:439–450 Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (2018) Assessment report on land degradation and restoration (IPBES/6/INF/1/Rev.1). Report presented at the 6th Session of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Service, Medellin, Colombia, 18–24 Mar 2018 International Union for the Conservation of Nature (2016) World declaration on the environmental rule of law. Declaration at the IUCN World Environmental Law Congress, Rio de Janeiro, Brazil, April 2016. https://www.iucn.org/commissions/world-commission-environmental-law/ our-work/environmental-rule-law-1. Accessed 9 Nov 2018 Jones CA, DiPinto L (2018) The role of ecosystem services in USA natural resource liability litigation. Ecosyst Serv 29:333–351 Jones CA, Pendergrass J, Broderick J et al (2015) Tropical conservation and liability for environmental harm. Environ Law Report 45:11032–11050 Kaufmann D, Kraay A (2015). Worldwide governance indicators. The World Bank Group, Washington, DC. http://info.worldbank.org/governance/wgi/index.aspx#home. Accessed 9 Nov 2018 McLeod H (2000) Compensation for landowners affected by mineral development: the Fijian experience. Resour Policy 26:115–125 Nagin DS, Cullen FT, Jonson CL (eds) (2018) Deterrence, choice, and crime, vol 23: contemporary perspectives, Routledge Nellemann C, Henriksen R, Kreilhuber A et al (eds) (2016) The rise of environmental crime—growing threat to natural resources, peace, development and security. A UNEPINTERPOL Rapid Response Assessment. United Nations Environment Programme and RHIPTO Rapid Response—Norwegian Center for Global Analyses. http://wedocs.unep.org/bitstream/handle/20.500.11822/7662/-The_ rise_of_environmental_crime_A_growing_threat_to_natural_resources_peace%2C_development_ and_security-2016environmental_crimes.pdf.pdf?sequence=3&isAllowed=y. Accessed 12 Feb 2019 Pascual U, Balvanera P, Díaz S et al (2017) Valuing nature’s contributions to people: the IPBES approach. Curr Opin Environ Sustain 26:7–16 Phelps J, Hariyanti B, Sinaga AC et al (2014) Environmental valuation in Indonesia: implication for forest policy, legal liability and state losses estimates. Center for International Forestry Research, Bogor, Indonesia Phelps J, Jones CA, Pendergrass JA et al (2015) Environmental liability: a missing use for ecosystem services valuation. Proc Natl Acad Sci 112:E5379 Rockström J, Steffen W, Noone K et al (2009) Planetary boundaries: exploring the safe operating space for humanity. Ecol Soc 14:32 Steffen W, Crutzen PJ, McNeill JR (2007) The anthropocene: are humans now overwhelming the great forces of nature. Ambio 36:614–621 Steffen W, Persson Å, Deutsch L et al (2011) The anthropocene: from global change to planetary stewardship. Ambio 40:739–761 Sustainable Development Goals (2018) Goal 16. https://sustainabledevelopment.un.org/sdg16. Accessed 9 Nov 2018 Swanson T, Kontoleon A (2003) What is the role of environmental valuation in the courtroom? Environmental Law Alliance Worldwide (E-LAW). Working Paper. https://www.elaw.org/system/ files/Environmental.Valuation.Courtroom.pdf. Accessed 19 July 2019.

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Takkis K, Tscheulin T, Petanidou T (2018) Differential effects of climate warming on the nectar secretion of early-and late-flowering Mediterranean plants. Front Plant Sci 9:874 United Nations Environmental Programme (2012) Rio+20 declaration on justice, governance and law for environmental sustainability. Declaration in advancing justice, governance and law for environmental sustainability. UNEP Division of Environmental Law and Conventions, Nairobi, Kenya. https://wedocs.unep.org/bitstream/handle/20.500.11822/9969/advancing_justice_governance_law. pdf?sequence=1&isAllowed=y. Accessed 8 Nov 2018 Vaughn A (2018) BP’s Deepwater Horizon bill tops $65bn. The Guardian. https://www.theguardian. com/business/2018/jan/16/bps-deepwater-horizon-bill-tops-65bn. Accessed 8 Nov 2018 Walker G (2012) Environmental justice: concepts, evidence and politics. Routledge White R (2010) Prosecution and sentencing in relation to environmental crime: recent socio-legal developments. Crime Law Soc Chang 53:365–381 White R, Heckenberg D (2011) Environmental horizon scanning and criminological theory and practice. Eur J Crim Policy Res 17:87–100

Chapter 16

On the Hypotactic Imperative for a Transition from the Anthropocene to the Sustainocene Benjamen Franklen Gussen

Abstract The political, social and economic tensions revealed by the Anthropocene necessitate the adoption of the principle of hypotaxis as a constitutional principle leading to a new world-system of (free) charter-cities (rather than nation-states). To respond effectively to ecological crises, decision-making has to devolve to local communities by resurrecting the city-region as a body politic, through constitutional recognition of local sovereignty, including decision-making on environmental issues. Hypotaxis is the sine qua non for ushering the Sustainocene where humanity upholds its fiduciary duties towards all life on Earth. Keywords Anthropocene · Sustainocene · Hypotaxis · Subsidiarity · Spheres of sovereignty · Charter cities · Sustainability · Nation-state · Spinoza

16.1 Introduction In the book of Exodus, we read about Jethro, Moses’ father-in-law, and the appointment of judges (Exodus 18). The story goes as follows. Jethro objected to Moses’ approach in managing the affair of the Israelites. Moses wanted to be the sole source of the law and how it applied. Jethro saw the long-term instability inherent in this approach. He advised his son-in-law to adopt what could be called today ‘hypotaxis’ (following Luigi Taparelli D’Azeglio; Brennan 2014; Behr 2003), or ‘subsidiarity’ (following Wilhelm Emmanuel Freiherr von Ketteler; D’Onorio 1995; Schuck 2005) or ‘sphere sovereignty’ (following Kuyper 1998; Heslam 1998; Davids 2012). Moses hence chose capable men and made them leaders. These judges now decided the law for the people, save for difficult cases which were still brought to Moses. Now the law was able to evolve—to allow for local variation. In this essay, I map this Mosaic approach unto sustainability. The analogy sets environmental law as this Mosaic wisB. F. Gussen (B) School of Law, Swinburne University of Technology, Melbourne, Australia e-mail: [email protected] Australian Law and Economics Association, Melbourne, Australia URL: http://www.austlea.org © Springer Nature Singapore Pte Ltd. 2019 M. Lim (ed.), Charting Environmental Law Futures in the Anthropocene, https://doi.org/10.1007/978-981-13-9065-4_16

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dom that needs to be dispensed to the people, and that the people need to adhere to for their salvation. The tensions inherent in Moses’ original approach are a proxy for the (scalar) challenges of the Anthropocene. Sustainability is seen in the hypotactic approach adopted by Moses. Just like Moses, environmental law cannot overcome what Leopold Kohr, a rather obscure Austrian economist, called ‘the problem of scale.’ In the words of his (more famous) protégé, Ernst F. Schumacher, this problem can be described as follows: ‘[s]mall scale operations, no matter how numerous, are always less likely to be more harmful to the natural environment than large-scale ones’ (Schumacher [1973] 1999, p. 22). Kohr spoke of a ‘characteristic scale’ (Kohr 1978). In the context of the Israelites, this scale was what Jethro’s advice is all about. Even if we are to follow Nietzsche and dispense with our Mosaic analogy in entirety, as I discuss later in this essay, we still end up praying for hypotaxis.1 My main thesis is that the political, social and economic tensions revealed by the Anthropocene (Crutzen and Stoermer 2000) dictate that the content and operation of environmental law should emerge from constitutional law—through the principle of hypotaxis. Hypotaxis has three decision rules. The first is the rule of non-interference, where lower governments (at the city-region scale) solve their problems without interference from higher governments. Second is the rule of assistance, where higher levels of government (e.g. supranational or national) help lower level governments solve the problems that they cannot solve on their own. The third rule stipulates that national and supra-national governments should continue to transfer competencies and capabilities to city-regions so that the latter can solve their problems without reliance on the second rule. To respond effectively to ecological crises, the city-region has to be resurrected as a body politic, by providing constitutional space—as in legal space within the constitution—that recognizes local decision-making on environmental (and other) issues.2 Hypotaxis requires a ‘world-system’ (Wallerstein 1974) led by charter cities rather than nation-states. This approach is sine qua non for ushering the ‘Sustainocene’: a term that was coined by the Canberra-based Australian physician Furnass (2012) to refer to the period where governance structures and scientific endeavours are coordinated towards achieving ecological sustainability through the Schumacher-Boulding thesis of ‘small is beautiful’ (Schumacher [1973] 1999) and ‘Spaceship Earth’ (Boulding 1966).3 A comparison of the Anthropocene and the Sustainocene is shown in Table 16.1 (Faunce 2012). The Sustainocene has two dimensions: community-led governance and governance protecting future generations. These dimensions correspond to the economic and ethical rationales underlining the principle of hypotaxis (Gussen 2015a), and align with that principle’s 1 Note

that the original use of the term hypotaxis (by Taparelli) did not attract devolution or smallness of scale. See Brennan (2014) I maintain the same understanding. However, in terms of how the Anthropocene informs the content and operation of environmental law, hypotaxis leads to relinquishing the idea of the nation-state in favour of the city-region as the optimal body politic. 2 The author would like to thank the anonymous referees for their comments on formulating this thesis. 3 For further information on the Sustainocene see Faunce (2012).

16 On the Hypotactic Imperative for a Transition … Table 16.1 Comparison of the Anthropocene and Sustainocene epochs

183 Anthropocene

Sustainocene

Photosynthesis fuels

Yes

No

Corporate-led governance

Yes

No

Community-led governance

No

Yes

Governance protecting future generations

No

Yes

Governance protecting ecosystems

Yes

No

Governance protecting biodiversity

Yes

No

Adopted from Faunce (2012, Table 1, p. 350)

(Spinozistic) rendition through charter cities (Gussen 2013b). The hypotactic transition from the Anthropocene to the Sustainocene puts emphasis on constitutional law rather environmental law. The latter emerges from the former. Governance for the protection of ecosystems and biodiversity becomes inextricably linked with the policy dispensations flowing from charter cities (city-region governance). The rest of the essay unpacks how hypotaxis updates Jethro’s advice in the context of environmental law, especially its holy grail: sustainability. The essay elaborates the problem, the solution, and possible future development.

16.2 The Problem with Environmental Law Today In a nutshell, environmental law has largely eschewed its constitutional kernel, namely localism (and more precisely, hypotaxis, see below). In this essay, localism is defined as: an umbrella term which refers to the devolution of power and/or functions and/or resources away from central control and towards front-line managers, local democratic structures, local institutions and local communities, within an agreed framework of minimum standards. (Evans et al. 2013)

Localism has been marginalized in the current responses to the ecological crisis (Gussen 2012). Probably, the reader can point out some exceptions to this general trend. Notwithstanding, even the most iconic of all environmental law instruments favors national and supranational intervention over localism. Take for example the Earth Charter. Even the Earth Charter, the flagship in the discourse on the modern response to the ecological crisis, is tilted in favor of nation-states rather than the local autonomy without which any response to the crisis would at best be a ‘placebo effect’ (Gussen 2012, p. 182). We were led to believe in the virtues of social, economic, and political integration (à la globalization) through three technologies. First, through the fiction of ‘Indigenous people,’ which marginalizes local communities in search of self-organization. Second, through ‘universal human rights,’ with their emphasis on

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individual rather than collective (communal) rights. Third, through the illusion of the ‘complexity imperative,’ where the complex nature of our world dictates coordination at the global rather than the local level. We now accept globalization (one particular modality of integration) as the only effective form of combating the modern ecological crisis. There is a clear insistence on the hegemony of a global response. One that is orchestrated by global institutions. All communities have to do is to implement the global vision bestowed on them by such institutions. What is wrong with this picture? In one word, complexity. Some suggest that what is needed is developing “a perspective that can handle increasing complexity,” and hence question whether “a decentralized system of private and subnational initiatives be sufficient to resolve problems at the global scale?” (e.g., Bai et al. 2016). This author argues that what is needed is an organizational model that abates high levels of (organizational) complexity—especially as evidenced in the Great Acceleration trends (Steffen et al. 2007). Elsewhere I have explained the nature of the complexity of ecological systems and the importance of self-organization (Gussen 2015a, b). Let me elaborate through Joseph Tainter, a leading scholar on the collapse of complex societies. He finds that, historically, increasing complexity has limited the ‘system capacity’ of societies to resolve their problems and to adapt to their environment (Tainter 1995, 2006). This is an argument of diminishing returns to complexity and constitutes the essence of self-organization. Although Tainter does not use the term self-organizing, he correctly identifies the transition from higher complexity to self-organization (and the ensuing decentralization of decision-making) as the only strategy to prevent collapse. Tainter’s depiction of complex societies is one where there is either resistance to self-organization, which leads to collapse (Tainter provides the example of the Roman Empire for this outcome), or where self-organization is enabled (which Tainter sees as leading to simplification of the social relationships within the system), hence evading potential collapse (Tainter gives the example of the Byzantine Empire for this outcome). A better way to understand the difference is to think of two types of complexity: one based on hierarchical organization (simple complexity), the other based on rhizomatical organization (i.e. emergent complexity) (Deleuze and Guattari 1980). Rhizomatical causality is not chronological and does not look at the origin of things (inputs) but rather at their conclusions (outputs). In relation to democracy, rhizomatical causality would look at outputs such as happiness, the rule of law, and economic growth, rather than the inputs of electoral processes, political parties, and civil rights. A rhizomatical interpretation favors a non-hierarchical polity based on non-linear self-organization and decentralization. Growing degrees of economic integration (globalization) and the ensuing modulation of local-global power relations is putting more emphasis than ever before on clarifying our understanding of the democratic ideal and its operation from within the nation-state. In fact, some argue that globalization is the self-organizing process of constructing a world socio-economic community (Voets and Biggiero 2000; Schmitter 1999). This level of economic integration is resulting from a paradigm shift, away from the ‘international model,’ and to a ‘transnational model’ (Voets and Biggiero 2000; Mateos et al. 2002). Today, to cope with increasing environmental complexity, there needs to be a move away from

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hierarchical organization, and towards growing degrees of self-organization. The above views provide one way of looking at the transition. Another way of explaining the same transition is the concept of a rhizome (above).

16.3 The Solution Sustainability is a likely outcome to the ‘problem of scale’ only through hypotaxis. It is a fitness trait that prevents highly complex systems from collapsing. Sustainability cannot occur without hypotaxis, while hypotaxis guarantees sustainability. This coevolution becomes clear when we understand hypotaxis as self-organization and sustainability as an emergent property. Emergence cannot occur in highly complex systems (such as polities) without self-organization (Gussen 2015a, c). Hypotaxis is a modality of localism where emphasis is on city-regions. Hypotaxis is about embedding the decision-making process at the local level and ensuring that central government is only hypotactic to local government (Gussen 2014a, b). A related concept is ‘solidarity’ or “social cohesion” (Wildt 1999). It is defined as “a union of interests, purposes, or sympathies among members of a group; fellowship of responsibilities and interests” (Gutierrez 2005). Hypotaxis is the mechanism that bridges ‘solidarity’ (at the city-region scale) and ‘sustainability’ (a global scale concept) (Gussen 2015a, c). The nation-state is a highly complex system within which cities function as ‘attractors’ (see glossary section). The collapse of such systems would ensue if there were strong coupling between attractors (such coupling obtains in cities under legal monism as propagated by nation-states). Only hypotaxis can make this eventuality improbable. Understanding the ‘emergent properties’ of sustainability and the ‘self-organizing’ properties of hypotaxis entails a shift in policy emphasis towards the latter. A historical reconstruction of the concepts of hypotaxis and sustainability elucidates their interdependence and suggests future global governance structures based on a hypotaxis where cities take the lead on sustainability (Gussen 2013b). In essence, constitutional and environmental laws are inextricably linked. The transition from the Anthropocene to the Sustainocene requires relinquishing the idea of the nation-state and substituting it with a hypotactic imperative where charter cities lead on the development and implementation of environmental laws. The transition to the Sustainocene requires new constitutions, not new environmental law. Today, the contiguous-and-non-perforated-state principle is being challenged by new conceptions of the state as well as its sovereignty (Kurrild-Klitgaard 2002). There is an ongoing shift towards seeing the state as constituted on non-contiguous basis. Using the analogy with the idea of a ‘polycentric’ legal order implying a multiplicity of independent centers of decision-making (Hayek 1983; Bell 1991), there is no extensive evaluation of the need for, or merit of, an analogous ‘polycentric’ constitutional order (Barnett 1998). Here the emphasis would be on maximizing constitutional options rather than deciding among constraints per se. Instead, the assumption is usually made that “there is a state or a commonwealth, without

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exploring the question of which domain [a scalar construct] this commonwealth or state should actually occupy, and in relation to what other public bodies” (Backhaus 2005). Such non-contiguous states are at the center of Spinoza’s discourse (Spinoza 1951; Balibar and others 1989; Prokhovnik 1997, 2001, 2004; Gross 1996; Havercroft 2010). Because his ‘sovereignty’ is closer to hypotaxis than to federalism, it is more receptive to city power and city autonomy (Blank 2010). The sharing of sovereignty (through hypotaxis) among cities hence finds explicit endorsement in his scholarship (Gussen 2013b). Spinoza separates the constitutional and operational levels of collective decision-making, thus paving the way for the possibility of a shared sovereignty. This is also the approach followed in constitutional economics (Buchanan and Tullock 1962). For Spinoza, who allied himself with the Dutch republican movement, under hypotaxis, sovereignty is not repugnant to principles of provincial autonomy. Spinozistic ‘sovereignty’ provides a model (Prokhovnik 2007, p. 228): in which powers are shared between sovereign bodies … which reaffirm their separateness … In federal systems such as the United States or in Australia, legislative, judicial and executive powers are distributed between federal and different state governments … under [Spinozistic sovereignty], however, ‘confederal’ powers … were extremely closely restricted … Rather than attempting to harmonize differences … [it upholds] the constructiveness of difference …

It could be in fact argued that “Spinoza’s notion of sovereignty is crucially designed as an instrument to defend the constitutional tradition, and not as an instrument to unify and strengthen the state. Its purpose is to check the development of centralized government, not to promote it” (Prokhovnik 2001, p. 297). James Buchanan echoes Spinoza when he explains his idea for European ‘federalism’ (better understood as subsidiarity) as “diversity among separate co-operative communities, of shared sovereignty, of effective devolution of political authority and, perhaps most importantly, of the limits on such authority” (Buchanan 1990, pp. 3–4) (italics in the original, underlining added). Buchanan envisaged a “federal union within which members of separate units cooperate …” and share sovereignty, where constitutional requirements guarantee free trade, and with a monetary constitution based on competing national currencies (Buchanan 1990, p. 18).

16.4 Codetta We need to move to an Olympic future, as opposed to a ‘World Cup’ one. Let me explain. In an Olympics, for example, the 2016 Rio Summer Olympics, one city hosts a multitude of games—all happening in one place, under the auspices of one city. The city becomes a showcase for the whole world. In a ‘World Cup’ instead, for example, the 2015 Rugby World Cup, a whole nation organizes games for one sport across its geographic extent. In the case of the 2015 World Cup, England hosted the tournament in no less than eleven cities. The ‘World Cup’ was showcasing England rather any of these cities per se. Some would argue that it would not be efficient for

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one city to host a Rugby world cup, as it would not have enough stadia to have all games played on a tight schedule (usually 30 days). However, London alone has at least 15 venues (including Wembley, Twickenham, Emirates, Stamford, White Hart Lane, and the Olympic Stadium). Such global cities are capable of hosting a ‘World Cup’—alone. It is possible to have a balanced formula of the ‘characteristic scale’ for such tournaments. The key point again is that environmental law has been captured by the very beast it should be militating against, namely, the existing nation-state ‘world order.’ This suggests that much of the work being done under environmental law is ‘cosmetic.’ What is needed instead is a brave departure towards a ‘world-system’ dominated by hypotaxis on the city-region scale (a city and its hinterland). No more would countries with large jurisdictional footprints dictate the agenda. Sustainability would diffuse through this ‘world-system’ from one city to another just like technology would. In this future, self-organization at the city-scale helps ensure sustainability. In this future, charter-cities replace democracy as the benchmark for progress.

Glossary Anthropocene A term introduced in 2000 to describe the Agricultural and Industrial Revolutions’ geological epoch in which humans became a dominant influence on changes in the Earth’s climate and the environment. More recently the term was broadened to encompass the challenges and opportunities created by human’s global potency, and the action agendas dealing with the ensuing uncertainties. Attractors The area a dynamical system reaches in equilibrium. Attractors represent steady states of typical behavior. Cities are the prime example of attractors in nation-states. Charter Cities A charter city is a city-region (a city and its hinterland) that is governed by its own political system according to a charter bestowed on it through nation-state parliaments. The charter represents an international treaty (under the United Nations) that devolves most functions of governance to the city for an extended period of time (for example 100 years), which is open for renewal. This would allow the city to have its own legal system including currency, immigration laws (including refugee quotas), employment laws, etc. The city remains under the sovereignty of its nation-state but could have a separate citizenship that does not lead to any residency rights in the nation-state. In essence, charter cities, which are sometimes also referred to as special administrative regions (such as Hong Kong or Macau), or as economic zones (such as the Visakhapatnam Special Economic Zone in Andhra Pradesh, India), allow nation-states to leverage the multiplicity of different legal systems. Cities Densely populated urban areas characterized by cosmopolitan diversity. What distinguishes cities from towns and villages is not the size of their population but their ability to attract all forms of capital. Cities play the role of ‘attractors’ in political states.

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Collapse The final phase in the life of a dynamical system (such as a nation-state) where it exhibits chaotic behavior that precedes the destruction of system’s structure. Collapse is a function of the level of coupling (synchronization) between attractors (such as cities). The higher the coupling (through harmonized legal systems) the higher is the probability of (system-wide) collapse. Complexity Theory An analytical paradigm that moves away from reductionist tendencies and accepts the limitations on our ability to fully control or predict the behavior of dynamical systems such as nation-states. Complexity is an attribute of dynamical systems that are evolving i.e. systems that are adapting (through self-organizations) to local variations. What is complex is the structure of such systems—a dynamic network of interactions. Emergence The appearance in a dynamical system of new structures under selforganization. Emergence introduces higher scales into existing structures at the lowest possible increase in complexity. Hypotaxis (adjective: hypotactic) The rules of grammar that govern the modalities of coordination among clauses. By extension the principle of hypotaxis refers to the legal, political, economic, and ethical principle that decides the scale of social organization based on the following decision rule: as much freedom as possible and as much state as necessary. In Catholic social doctrine, the principle is known as ‘subsidiarity,’ while in Protestant doctrine it is referred to as ‘spheres of sovereignty.’ The doctrine has its origin in Judaism, and can also be seen in Islam. I use ‘hypotaxis,’ instead of other terms, to maintain a religion-neutral analysis. Jurisdictional Footprint The legislative monopoly of a given polity over a territory (area). It represents the authority of a country to make law and hence influence decision-making, over a particular land and its inhabitants. Rhizomatical Organization One of two types of organization resulting in complexity (the other being hierarchical organization). Rhizomatical causality is neither chronological nor hierarchical. In such organization causality is diffused (without beginning and end points). History ceases to be a narrative and becomes a map of attractors. A rhizomatical organization of polities favors a non-hierarchical polity based on non-linear self-organization and decentralization. The defining features of such polities are acentricity, heterogeneity, and multiplicity. Self-organization The ability of a dynamical system to acquire a stable structure without external control. Self-organization induces emergence. Stability The ability of a dynamical system to remain within the area of an attractor in the face of sudden changes in its environment. Stability suggests immunity to collapse. This concept is related to resilience namely the ability to manage change and be able to develop in the long run. Subsidiarity A legal political, and social principle that nests authority structures around constituent powers at the local scale. Under complexity theory, subsidiarity translates into self-organization. Sustainability A response mechanism that prevents complexity from leading to collapse. While sustainability is widely seen as a legal principle it is better

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understood as an emergent property leading to stability and resulting from selforganization. Sustainocene A term introduced in 2012 to describe the period where governance structures and scientific endeavors are coordinated towards achieving ecological sustainability through the Schumacher-Boulding thesis of ‘small is beautiful’ and ‘Spaceship Earth.’

References Backhaus JG (2005) Subsidiarity. In: Backhaus JG (ed) The Elgar companion to law and economics, 2nd edn. Edward Elgar, Northampton, MA, pp 280–286 Bai X, van der Leeuw S, O’Brien K, Berkhout F, Biermann F, Brondizio ES, Syvitski J (2016) Plausible and desirable futures in the anthropocene: a new research agenda. Glob Environ Change 39:351–362. https://doi.org/10.1016/j.gloenvcha.2015.09.017 Balibar E, others (1989) Spinoza, the anti-Orwell: the fear of the masses. Rethink Marx: J Econ Cult Soc 2(3):104–139 Barnett RE (1998) The structure of liberty: justice and the rule of law. Clarendon Press, Oxford, especially Chapter 14 Behr TC (2003) Luigi Taparelli D’Azeglio, S. J. (1793–1862) and the development of scholastic natural-law thought as a science of society and politics. J Mark Moral 6:99–115 Bell TW (1991) Polycentric law. Inst HumE Stud Rev 7(1) Blank Y (2010) Federalism, subsidiarity, and the role of local governments in an age of global multilevel governance. Fordham Urban Law J 37(2):509–558 Boulding KE (1966) The economics of the coming spaceship earth. In: Jarrett H (ed) Environmental quality issues in a growing economy. Johns Hopkins University Press, Baltimore, MD, pp 3–14 Brennan PM (2014) Subsidiarity in the tradition of Catholic social doctrine. In: Evans M, Zimmermann A (eds) Global perspectives on subsidiarity. Springer, London, pp 29–47 Buchanan JA (1990) Europe’s constitutional future. Institute of Economic Affairs London, London Buchanan J, Tullock G (1962) The calculus of consent: logical foundations of constitutional democracy. University of Michigan Press, Ann Arbor Crutzen PJ, Stoermer EF (2000) The anthropocene. Glob Chang Newsl 41:17–18. International Geosphere Biosphere Program (IGBP) D’Onorio J-B (1995) La Subsidiarité: de la théorie à la pratique. Téqui, Paris Davids JA (2012) Abraham Kuyper’s sphere sovereignty. Christ Law 6(7):6–7 Deleuze G, Guattari F (1980) A thousand plateaus. Continuum, London Evans M et al (2013) Understanding localism. Policy Stud 34(4):401–407 Faunce T (2012) Towards a global solar fuels project-artificial photosynthesis and the transition from anthropocene to sustainocene. Procedia Eng 49:348–356 Furnass B (2012) From anthropocene to sustainocene: challenges and opportunities. Public Lecture. Australian National University, 21 March 2012 Gross GM (1996) Spinoza and the federal polity. Publius 26(1):117–136 Gussen BF (2012) The marginalisation of localism in current responses to the ecological crisis. NZ J Environ Law 16:167–201 Gussen BF (2013a) On the problem of scale: Hayek, Kohr, Jacobs and the reinvention of the political state. Const Polit Econ 24(1):19–42 Gussen BF (2013b) On the problem of scale: Spinozistic sovereignty as the logical foundation of constitutional economics. J Philos Econ 7(1)

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Gussen BF (2014a) The evolutionary economic implications of constitutional designs: lessons from the constitutional morphogenesis of New England and New Zealand. Perspect Fed 6(2):E319–E346 Gussen BF (2014b) Subsidiarity as a constitutional principle in New Zealand. NZ J Public Int Law 12(1):123–144 Gussen BF (2015a) Is subsidiarity a conditio sine qua non for sustainability? Policy Stud 36(4):384–398 Gussen BF (2015b) The state is the fiduciary of the people. Public Law 3:440–457 Gussen BF (2015c). On the problem of scale: the inextricable link between environmental and constitutional laws. NZ J Public Int Law 13(1):39–63 Gutierrez L (2005) Solidarity, subsidiarity, and sustainability. Solid Sustain 1(8). http://www. pelicanweb.org/solisust08.html Havercroft J (2010) The fickle multitude: Spinoza and the problem of global democracy. Constellations 17(1):120–136 Hayek FA (1983) Law legislation and liberty: a new statement of the liberal principles of justice and political economy, vol 2. The University of Chicago Press, Chicago Heslam PS (1998) Creating a Christian worldview: Abraham Kuyper’s lectures on Calvinism. WB Eerdmans Kohr L (1978) The overdeveloped nations: the diseconomies of scale. Schocken Books, New York Kurrild-Klitgaard P (2002) Opting-out: the constitutional economics of exit. J Econ Sociol 61(1):123–158 Kuyper A (1998) Sphere sovereignty. In: Bratt JD (ed) Abraham Kuyper: a centennial reader. Wm. B. Eerdmans, Grand Rapids, MI, pp 461–490 Mateos R, others (2002) From linearity to complexity: towards a new economics. Complex Int 10 Prokhovnik R (1997) From democaracy to aristocracy: Spinoza, reason and politics. Hist Eur Ideas 23(2–4):105–115 Prokhovnik R (2001) Spinoza’s conception of sovereignty. Hist Eur Ideas 27:289–306 Prokhovnik R (2004) Spinoza and republicanism. Palgrave Macmillan, New York Prokhovnik R (2007). Sovereignties: contemporary theory and practice. Palgrave Macmillan, New York Schmitter PC (1999) The future of democracy: could it be a matter of scale? Soc Resear 66(3):933–958 Schuck MJ (2005). Early modern Roman Catholic social thought, 1740–1890. In: Himes K, Cahill LS, Curran CE, Hollenbach D, Shannon T (eds) Modern Catholic social teaching: commentaries and interpretations. Georgetown University Press, Washington, DC, pp 99–126 Schumacher EF (1999) Small is beautiful. Hartley & Marks Publishers, Vancouver Spinoza B (1951) A theologico-political treatis and a political treatise. Dover Publications, New York Steffen W, Crutzen PJ, McNeill JR (2007) The anthropocene: are humans now overwhelming the great forces of nature. AMBIO: J Hum Environ 36(8):614–621 Tainter J (1995) Sustainability of complex societies. Futures 27(4):397–407 Tainter J (2006). Social complexity and sustainability. Ecol Complex 3:91–103 Voets HJL, Biggiero L (2000) Globalization and self-organization: the consequences of decentralization for industrial organization. Int Rev Sociol 10(1):73–82 Wallerstein I (1974) The rise and the future demise of the wold capitalist system: concepts for comparative analysis. Comp Stud Soc Hist 16(4):387–415 Wildt A (1999) Solidarity: its history and contemporary definition. Philos Stud Contemp Cult 5:209–220

Chapter 17

Municipal Solid Waste Management in India: Why Judicial Activism and Legislative Interventions Have Failed to Effectively Address This Issue? Maneka Kaur Abstract Man grew. Man created. Man wasted. The boom in human population along with the advancement in technology and lifestyle over the last century has put mankind in a bind. The waste generated from human households has evolved from being organic to the present complex mix of organic, plastic, waste and hazardous products diffuse. If not managed properly, the unprecedented surge in this waste exposes the entire living population and the environment to a host of threats. For a country like India, with swiftly increasing waste generation and availability of limited resources for its treatment and disposal, the need to have an effective plan to handle municipal solid waste has become extremely urgent. Progressive laws and an active judiciary alone are insufficient to provide the relief against this threat. There is a need to devise a municipal solid waste management plan which takes into consideration all aspects of a society ranging from the demographics, geographical location, economic condition, day-to-day lifestyle, moral strength of the society to the effectiveness of laws and legal regulations. Keywords Municipal Solid Waste Management · Anthropocene Epoch · Domestic Hazardous Waste · Unscientific and Illegal Dumping · Segregation at Source · Interdisciplinary Collaboration

17.1 Introduction Man grew. Man created. Man wasted. Human influence in altering the planet can be seen in many ways. The reduction in green cover, increase in the sea level, significant change in global climate, extinction of species, man-made crises like wars and other disturbances have pushed Earth into the Anthropocene Epoch, wherein human influence is changing the geochemical signature of the planet (Waters et al. 2016). As a relatable ontology, this epoch is best visible in a country like India wherein the rise in population is directly proportional to the rise in pollution levels—especially the polluM. Kaur (B) Environmental Lawyer, H.No. 124 A/D, Gandhi Nagar, Jammu 180004, Jammu and Kashmir, India e-mail: [email protected] © Springer Nature Singapore Pte Ltd. 2019 M. Lim (ed.), Charting Environmental Law Futures in the Anthropocene, https://doi.org/10.1007/978-981-13-9065-4_17

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tion caused by the illegal and unscientific disposal of municipal solid waste. As India prospered both in technology and wealth, not only did the generation of municipal solid waste increase drastically but the character and composition of waste also went through a complete makeover. The lack of comprehension of the characteristic and adequate resources to deal with municipal solid waste became an imminent threat to public and environmental health. This encouraged India to introduce legally binding regulations for proper Municipal Solid Waste management. However, despite the reckoning and the punitive nature of the law, the country’s waste management woes are more severe than ever. Why have judicial activism and legal interventions failed to effectively manage municipal solid waste management in India? This chapter, while addressing the aforementioned overarching research question, is divided into five sections. The first section attempts to familiarize the reader with the concept of urban solid waste. This is followed by an introduction to the procedural and regulatory laws for municipal solid waste management in the country in section two. The third section updates the reader regarding the present municipal solid waste management scenario in the country. The fourth section, with the help of case studies, contemplates the reason behind the ineffectiveness of the Indian laws and legal policies. The fifth section, finally concludes that the law alone cannot safeguard our environment against the threats of global environmental change. In order to ensure effective waste management, we need urgent inter-disciplinary collaboration between various branches of study, including but not limited to social science, finance and psychology.

17.2 Rise of the Urban Municipal Solid Waste The scientific community believes that human interference in the form of accelerated technological development, rapid growth of human population, and increased consumption of resources has produced a stratigraphic signature in the earth’s sediments which is illustrative of the beginning of the Anthropocene epoch (Waters et al. 2016). One such example of anthropogenic interference is the unregulated and unscientific disposal of municipal solid waste. As an inevitable outflow from the society, waste is reflective of its socio-economic variables. A higher standard of living results in more waste generation and also a greater ability to invest in the waste management system; higher population density, on the other hand, signifies limited resources and the need to use them judiciously (Matsunga et al. 2002). At present, municipal solid waste generation from high income countries is 46% of the total waste generation globally. Yet, due to the availability of best scientific knowledge and technology, this 46% poses a lesser threat than waste generated by lower income countries. As per the World Bank Report (2018a) on municipal solid waste generation, OECD countries in 2010 had an average municipal solid waste generation of 2.2 kg/capita/day. By the year 2025 the average is expected to come down to 2.1 kg/capita/day. Whereas, for the south Asian region the average municipal solid waste generation is likely to increase from 0.45 kg/capita/day in 2010 to 0.77 kg/capita/day by the year 2025.

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Indian cities alone will increase its generation from an average of 0.3 kg/capita/day in 2010 to 0.7 kg/capita/day in 2025. India’s shift from an agriculture based nation to an industrial and service-oriented country is responsible for the unhealthy flow of population into the cities leading to the subsequent rise in municipal solid waste generation (World Bank Report 2018b). In 1999, the entire country, with a population of 846 million, generated 30,058 tonnes of municipal solid waste per day. By 2011, the population increased to 1.2 billion and municipal solid waste to 50,592 tonnes per day (Joshi and Ahmed 2016). As the country prospered, by 2014, the population of 377 million living in urban India alone had become the world’s third-largest garbage generator (Central Pollution Control Board, Ministry of Environment and Forest 2015). Although it might be argued that municipal solid waste is not a new phenomenon and hence, not dangerous uncharted territory, what seems to overlooked is that industrialization and economic growth has not only contributed to a tremendous increase in garbage generation, but also to a complete change in its character and composition. Waste today is heavily influenced by the socio-economic status, cultural habits, urban structure, population and commercial activities of the society (Pamnani and Srinivasarao 2014), therefore, making it difficult for the country to have proper data of the waste generated from its households. As a result, it becomes impossible for the nation to come up with the management plan that would be effective and apt for managing its waste. Moreover, the volume of commercial products that enter an economy, and subsequently our household, do not educate us on the product’s eventual fate. For example, the majority of average Indian households use Compact Fluorescent lights (CFL) based on it being marketed as a financially viable commodity in comparison to other available products in the same category. Once the life of the light bulb reaches its end, it is replaced and disposed off. What an average consumer is unaware of is that once the CFL is broken, it releases mercury into the air and into the land where the garbage is dumped. Upon exposure, it can lead to life-threatening and severe diseases. Other hazardous products that can be seen in municipal solid waste include traces of waste medicine, e-waste in form of broken kitchen appliances and other electronic commodities, paints, chemicals, light bulbs, fluorescent tubes, spray cans, fertilizers and pesticide contains, batteries etc. Much like the mercury in CFL, these waste products also have compositional elements that expose both the environment and humans to dreadful fatalities. It is thus fitting that waste coming out of urban households is often termed ‘domestic hazardous waste.’ This domestic hazardous waste becomes harder to dispose of in an environmentally friendly manner once it is mixed with the recyclables and biodegradable coming out of the households. If the projections made by the Planning Commission of India do indeed come true, by 2031 the urban areas will generate 165 million tons of waste annually. This is a 100% increase from 2014 (62 million tonnes); by the year 2050, it will increase four-fold to reach 436 million tonnes (Planning Commission of India 2018). Such projections imply that India will need to equip itself with the landmass, strict legal regulations and technology to dispose off all this waste in a safe manner.

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17.3 Procedural and Regulatory Laws for Municipal Solid Waste Management To regulate such massive quantities of garbage, India’s legal framework has empowered State Governments to legislate and implement measures related to public health and sanitation. This empowerment is to be understood in the broader context of the Constitution of India which allows the judiciary to engage in judicial review in accordance with the doctrines of proportionality, legitimate expectation, reasonableness and the principles of natural justice. The Indian judiciary has rightly used this power, time and again, to exercise judicial activism and to rule on the constitutionality of legislative as well as administrative actions (Hon’ble Balakrishnan, K.G. J., Chief Justice of India 2009). In the 1990s, the Supreme Court of India undertook the task of promoting municipal solid waste management wherein the apex Court provided a list of directions for ensuring proper collection, segregation and disposal of Municipal Solid Waste in the state of Delhi (B.L. Wadhera v. Union of India [(1996 SCC (2) 594]). However, the directions in B.L. Wadhera were not complied with predominantly due to the inaction of the authorities. This led to the apex Court exploring a more structured waste management plan for nation-wide implementation in Almitra Patel v. Union of India & Ors. [(1998) 2 SCC 416]. A committee comprising of both legal and scientific experts was brought together to look into all aspects of urban solid wastes and was directed to make recommendations that became the draft rules for municipal solid waste management. These draft rules were placed for consideration before the Parliament and were finally notified by the Central Government in 2000 as the Municipal Solid Waste (Management and Handling) Rules, 2000 [the Rules]. The Rules placed the burden for implementation on the executive and detailed a specific timeline for setting up the management system (Schedule I read with Rules 4(2) and (3)).1 They provided standards and specifications for composting, treating leaches and incineration, setting up landfills and creating buffer zones, along with proper demarcation of duties and responsibilities. Most importantly, the Rules recognized the changing character of municipal solid waste2 and advocated for educating and promoting waste segregation by undertaking activities that involve local communities (Schedule II read with Rules 6(1) and (3), 7(1)). The Rules of 2000, however, were unsuccessful in improving the situation.

1 Setting

up waste processing and disposal facilities by 2003; regular monitoring every six months; improvement of existing landfill sites by 2001 and identification of new landfill sites by 2002. 2 Section 3(xv) of the Rules define Municipal Solid Waste in an inclusive manner. “Municipal Solid Waste includes commercial and residential wastes generated in a municipal or notified areas in either solid or semi-solid form excluding industrial hazardous wastes but including treated bio-medical wastes.”

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17.4 Non-implementation of the Municipal Solid Waste Rules and Its Subsequent Amendments The combined municipal solid waste generated from Class—I cities3 for the years 2009–2011 was documented at 1,27,486 tonnes per day, out of which only 15,881 tonnes per day was treated (Central Pollution Control Board, Ministry of Forest and Environment 2012). The best way to treat municipal solid waste is by following the principle of recycling, restoring and reusing. However, due to the nature of Indian waste coupled with lack of data, scientific technology and available landmassuntreated waste is either dumped in open spaces or burned on streets exposing both environment and human to a host of diseases. A village named Vilappilsala, 22 km from the capital of the state of Kerala, became victim to such unscientific dumping after a waste composting plant was built and the village started receiving 80% of the waste generated from the capital city, Thiruvanathapuram. The village reported a ten-fold increase in respiratory illness in the same month. In fact, the people swimming in the village’s aquifer started contracting infections. Even the water became undrinkable. Needless to say, the government had to shut down the plant due to protests from the local communities. As there was no place else to collect and dispose of the garbage, the civic bodies in the capital city stopped collecting wastes from household. Without other alternatives, the residents dumped their trash in the streets and water bodies at the night. To avoid political crisis and to maintain cleanliness in the capital, 2500 police personnel had to finally accompany garbage trucks to the waste treatment plant to curb protestors from the village who were blocking the roads [Villappilsala Samyuktha v. State of Kerala (O.A. No. 247 of 2014)]. As for other methods like recycling—it is assisted with the help of unorganized sector of small scale ragpickers who themselves are unaware of the risk of going without proper gear into the landfill. Incineration too has failed as it requires proper segregation at source- something which is yet to be achieved in the Indian waste management system. The judiciary of India, however, has not given up hope on the country’s shortcomings and decided to carry forward the matter of Almitra Patel in the National Green Tribunal.4 By this time, however, the dangers and threats of unregulated and illegal dumping of municipal solid waste have already increased manifold. Sightings of municipal solid waste mixed with bio-medical waste and e-waste are a common occurrence. To make matters worse, people from lower economic stratas of society and livestock are often in contact with such hazardous waste. The exposure has led 3 Class—I

cities are all those urban agglomerations/towns which have at least 1,00,000 persons as population. 4 National Green Tribunal was established for expeditious disposal of cases relating to environmental protection and conservation of forests and natural resources including enforcement of legal rights relating to the environment and giving relief and compensation for damages. The matter Almitra Patel v. Union of India & Ors. was taken up by the National Green Tribunal upon transfer from the Supreme Court of India for looking into the compliance of the MSW Rules, 2000 on 14th October 2014.

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to consequences such as tragic diseases and loss of livestock and called for a better understanding of the changing characteristic of the waste generated by the economy. For example, dengue outbreak in Kolkata due to accumulation of rain water caused by non-biodegradable waste littered all over the city (Annepu 2018). The legislature, as a result of the afore-stated and directions from the judiciary, has developed Rules specific to the character of the waste. These notified Rules include the Hazardous Waste (Management, Handling and Transboundary Movement) Rules (1989), which were subsequently amended in 2003 and 2010; the Battery (Management and Handling) Rules in 2001; the Bio-Medical Waste (Management and Handling) Rules in 2009; the Plastic Waste (Management and Handling) Rules in 2009; and, the E-waste (Management and Handling) Rules in 2011. The nodal agency for environment protection in India, the Central Pollution Control Board, was directed to publish status reports on implementation under these Rules. Unfortunately, municipal solid waste management in the country did not improve in over a decade and a half of the functioning of the Rules. Municipalities and State authorities did not submit their reports within the specified time; additionally, the documented data did not indicate the ability of even a single city to fully cover house-to-house segregation and collection. Even in metropolitan areas like Delhi, out of the 70% waste collected, only 30% of the waste was being treated. Most of the municipalities continued to dump their waste without segregation (Central Pollution Control Board 2013). This, along with numerous cases being heard in Indian Courts, led the Government of India to draft new and updated rules to comprehensively cover Municipal Solid Waste, Electronic Waste, Plastic Waste and Medical Waste (TNN 2015). As a result, the Solid Waste Management Rules (2016) replaced the Municipal Solid Wastes (Management and Handling) Rules (2000) in an attempt to include more stakeholders, strictly enforce segregation at source, make provisions for the concept of waste-to-energy, provide a system of constant checks and balances, and provide area specific guidelines for solid waste management. The Solid Waste Management Rules of 2016 stipulate zero tolerance for throwing or dumping of waste on the streets, open public places, in drains, or any water-bodies (Rule 4). They also aim at achieving the desired objective of zero waste going to landfill (Rule 15 (zi)). To this end, the Rules have increased their ambit by recognizing a wider list of waste generators and implementing authorities (Rule 15 (zi)). It can be said that the Rules of 2016 are trying to be cover all the loopholes of Rules of 2000; and to ensure their successful implementation have called all the states to set up policies in the support of the Rules. Improvements as a result of the Rules, however, have yet to be seen. The Central Pollution Control Board’s annual report on the implementation of the new Rules for the year 2016–2017 shows that nothing has changed. The annual report highlights the failure of the Rules to curb open dumping. Almost all states continue to dispose of their waste through open dumping while segregation at source has also taken a hit. The waste processing and disposal facilities of the states, in fact, were not found to be in working conditions at all. Even if states managed to have their waste segregated, the fact that the waste was dumped together makes the efforts useless. The Report also observed that the requisite formation of state policy

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for implementation of the Rules, too, has not been formed by most of the states and recommended for amending of the 2016 Rules to ensure proper implementation. The grimness of the report can be corroborated by the matters being taken up by Indian Courts. At present the National Green Tribunal is hearing multiple cases wherein the main issue is illegal dumping of municipal solid waste into open public areas [NGT Principal Bench suo-motu (O.A. No. 606/2018); Antika Sinha v. State of Maharashtra and Others. (O.A. No. 510/2018); Rinkal Batra and Ors. v. state of Harayana (O.A. No. 603/2018)] and water bodies [NGT Principal Bench suo-motu (O.A. No. 606/2018) (TNHRC); Environment pollution and hearth hazard in the state of Meghalaya v. state of Meghalaya (O.A. No. 42 (THC)/2014/PB/5/EZ)]. It is seeking an action plan from various State and Union Territory governments to elaborate on how they plan to follow through with the provisions of the Rules of 2016 especially with regard to connecting domestic liquid waste to common sewage treatment plant (Press Trust of India 2018). The Tribunal has even called for penalizing violators for non-compliance with the Municipal Solid Waste Rules, taking stringent and punitive action against administration, and submitting compliance report to the nodal agency for environment so that data is maintained and apt techniques are developed [Almitra Patel v. Union of India & Ors. [(1998) 2 SCC 416]; Saloni Singh v. Union of India and Ors. [Original Application No. 141 of 2014], Mahesh Dubey; Ganga Action Parivar v. State of Uttarakhand and Ors. [Original Application No. 523 of 2014]; Madhumangal Shukla v. Union of India and Ors. [Original Application 136 of 2014]. However, these orders and judgments often result in being mere paper tigers and get caught in the labyrinth of ‘action plans and special task forces.’ Once, the action plan is submitted, the Tribunal or court disposes off the matter by handing over the plan to the administrative bodies along with a timeline. However, due to inefficient working on the part of the administration and lack of concern from other stakeholders, the plan does not even see the light of the day. Until one day when, a vigilant and suffering individual decides to file a case seeking redress against his grievance and the court fishes out the older directions and plans. And, the circle of life continues. Despite India being often lauded for its judicial activism and progressive legislature, it is still being exposed to multiple waste related diseases and dangers. Where it is easy to put the onus on the administration for its incapable working or the judiciary for not being stringent; it can be argued that our problem goes beyond that. The state of Karnataka’s pollution control board’s decision to shut down a polluting and dangerous landfill site was over-ruled after public outcry over the lack of an alternative dumping site. The inconvenience led to a public outcry and the state board had to reopen the landfill site out of fear of mass political and civil retaliation (Annepu 2018). A similar pattern can be noticed in the afore-cited case of Kerala, wherein the need for health and safety of a few communities in a small village was repudiated for the capital city.

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17.5 Paper Tigers, Inefficient Monitors and a Self-centered Society The Executive arm of the Government has also attempted to dabble in making the country cleaner and greener by introducing innovative models and action plans for municipal solid waste management (Capt. Mall Singh v. State of Punjab and Ors. [Original Application 70/2012 Judgment delivered on November 25, 2014]). In 2014, the Central Government launched a nationwide movement by the name of the “Swachh Bharat Abhiyan”5 (clean India campaign) that aimed at liberating the country of its unregulated waste and immensely disorganized waste management system. The movement focused on involvement from all sectors—the executive, the legislative and the judiciary—in addition to active involvement from the civil society. The 2015 floods in Chennai, a city in the state of Tamil Nadu, reminded us of the long fight that awaits us and how no particular sector, alone, can achieve success. The floods were attributed to the improper disposal of municipal solid waste. The arteries, i.e. the river channels, of the city were clogged due to the unregulated waste dumping. Additionally various illegal clusters and encroachments choked the outlets and led to the floods being the worst for the city in a century (Anwar 2015). Constant dumping of municipal solid waste, in addition to other illegal activities, has affected various rivers in India including the Yamuna and the Ganges that need to be rejuvenated and restored on an urgent basis.6 Despite knowledge, tools and repeated financial and labour investment from the legislature and the administration—India is still not able to regulate its municipal solid waste. The mismatch between the existing laws and their actual implementation is evidence of India‘s failure to keep this issue in check. Despite the various directions of the courts and initiatives and investments of the Government, the capital of the country alone has countless instances wherein heaps of non-segregated waste lie less than 20 feet away from human habitation with cattle and stray animals feeding on it. In 2016, parents of a seven year old boy committed suicide as the child succumbed to dengue, in Delhi. As the lack of sanitation is one of the main reasons for breeding of this disease-bearing mosquito, the Supreme Court took up the matter suo-motu in order to ensure a change. This matter was last taken up by the apex court in August of 2018, wherein the court gave basic directions and sought for constitution of a committee to look into municipal solid waste aspects in Delhi along with cleaning 5 The

Clean India Campaign was launched across the length and breadth of the country on 2nd October 2014 with an aim to clean India by 2nd October 2019. P.M. India. Towards a Swacch Bharat. http://pmindia.gov.in/en/government_tr_rec/swachh-bharat-abhiyan-2/. Accessed 18 October 2018. 6 The National Green Tribunal is taking up matters to rejuvenate and restore the two rivers to its original state by passing various orders and constituting committees to ensure compliance of its directions. The directions includes penalization, in the form of environmental compensation, against disposal/ dumping of garbage in the rivers or their banks. Manoj Mishra v. Union of India. [Original Application 06/2012]; Ganga Action Parivar v. State of Uttarakhand and Ors. [ Original Application No. 523 of 2014]; Madhumangal Shukla v. Union of India and Ors. [Original Application 136 of 2014].

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up of various dumping sites (Re: Outrage as parents end life after child’s dengue death [SMW (C) No(s). 1/2015]. Order dated August 17, 2018). It is important to note that even two years following the decision, the judiciary is still setting up committees to collect data. Unfortunately, this is not a singular case for Delhi, where committees are being constituted. Earlier this year, the Supreme Court directed for formation of a Central Empowered Committee to deal with solid waste management in Delhi (T.N. Godavarman Thirumulpad v. Union of India & Ors., [Writ Petition Civil No. 202/1995]. Order dated July 16, 2018). The question to ponder on is, what is holding India back in dealing with this basic human necessity. Why has something as simple as managing solid waste become a national disaster? We have dozens of government and judiciary appointed committee being formed to understand and provide solutions; we have courts threatening to strong arm the administrative bodies into doing their work properly; we have legislature being updated with the latest information; and, we have an administration aiming to involve the citizens in this fight while doing their bit. So, why are our young still dying due to the diseases born in garbage piles? Is it fair to blame the legislature for not providing stricter laws; or, the judiciary for not interpreting it in its strictest sense; or, the administration for not ensuring the execution? I believe it will be highly unfair. India already has policies, laws and legal precedents stating the do’s and dont’s of solid waste management. All of those aim for a clean India that has state of the art facility and man-power to tackle all waste related issues. Such policies and judgments are taken up with great vigour, however, they all eventually lose steam on account of practicality and do-ability. To state an instance, the National Green Tribunal has directed the officials of municipal corporation in Delhi to penalize anyone found defecating or throwing garbage on the railway tracks (Saloni Singh v. Union of India and Ors. [Original Application No. 141 of 2014]). However, it has not taken into account that the people defecating and disposing their trash on the railway tracks live in illegal clusters without any provisions as to private or public bathrooms. Without the basic amenities being available to them, the people have no recourse except violating the order. Moreover, their poor economic conditions makes them incapable of paying the fine thus, making this initiative a complete failure. Similarly, slums are practically colonies that are not existent on paper. Being invisible means that the administrative bodies are not responsible for providing them with basic necessities like garbage collection. Moreover, these colonies are not even taken into account while collecting data. The Rules of 2016 provide for segregation and collection at source and to ensure that the garbage is collected and taken to a proper dumping facility, provision has been made to charge the citizens for this service (Solid Waste Management Rules 2016, Rule 15 (zg)). However, those living in these slums can not afford to pay for this service, meaning they will continue to dump their waste on the road or some abandoned public property, from where the municipal bodies would collect the garbage, when the collection day comes. And, until then, the garbage will lie there, unsegregated and exposed with no one to penalize as this part of society is

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invisible to all. The fact that before the workers comes in, the garbage will be raided by animals and rag pickers (without any safety gear and hence, exposed to a host of diseases) is a different story all together.

17.6 Accurate Data Collection, Stricter Enforcement of Laws and Higher Public Participation We, as a society, often confuse convenience based common practices with the right way to do a certain thing. We also tend to overestimate our understanding of situations and often make the mistake of believing that everything is fine as long as we personally are not suffering. Perhaps that is why the death of a seven year old child caused by our ignorance and lack of concern in context to municipal waste could only get strong worded news headlines for a few weeks and setting up of a committee that only has a 50% chance of being effective. We need to do better than that and be accountable for our actions. Traces of the Anthropocene, in the form of unprecedented combinations of plastics, fly ash, metals, pesticides, etc. have already been discovered in glacial sediments of a lake in West Greenland (Waters et al. 2016). The abrupt stratigraphic transition from proglacial sediments in the Holocene epoch to non-glacial matter marks the onset of the Anthropocene epoch (Waters et al. 2016). We need to realize that we have much larger influence on how to maintain our nations and consequently, the planet. By practicing healthy garbage disposal techniques, we will not only improve our standard of living but also ensure a better future for the coming generations. India needs a policy that brings all the stakeholders together, including the invisible components present in our society. A well thought out policy will break the rigidity of the Constitution and laws at the time of need and act as a catalyst for each other. As the success of any policy will ultimately depend on the response of the society, we need to ensure that all citizens are bound to the policy via more than just ‘moral right.’ India needs a policy that incorporates the principles of self-regulation and general will based on prevalent conditions and after understanding the cultural, social and economic needs of all the stakeholders (ranging from administrative bodies to the citizens) involved. Unlike the present where the civil society is mostly a passive object of intervention, every member of the society needs to be personally vested in the outcome of the policy that can then be enforced by making all stakeholders aware of the consequences of unregulated garbage disposal. To support the legislation, a technique of incentive and penalty needs to be incorporated to ensure compliance and to create a system of checks and balances. To sum it up, the dream of a swachh Bharat (clean India), needs a policy makeover that brings everyone together and places accountability on everyone’s shoulders for ensuring that the policy follows through—and not only the implementing agencies. In conclusion, the only way forward is urgent inter-disciplinary collaboration between various branches of study, including but not limited to social science, finance and psychology.

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References Annepu (2018). https://www.bioenergyconsult.com/swm-india/. Accessed 9 Mar 2019 Anwar T (2015) First post. Devastation in Chennai: a look at some of the worst affected areas in the flood-hit city. http://www.firstpost.com/india/devastation-in-chennai-a-look-at-some-of-theworst-affected-areas-in-the-flood-hit-city-2535010.html. Accessed 18 Oct 2018 Central Pollution Control Board, Ministry of Environment and Forest (2009–2013). Status report on municipal solid waste management. http://www.indiaenvironmentportal.org.in/files/file/MSW_ Report.pdf. Accessed 13 Oct 2018 Central Pollution Control Board, Ministry of Environment and Forest (2015) Consolidated annual review report on implementation of municipal solid wastes (management and handling) rules, 2000. http:// cpcb.nic.in/displaypdf.php?id=aHdtZC9NU1dfQW5udWFsUmVwb3J0XzIwMTQtMTUucGRm. Accessed 11 Oct 2018 Hon’ble Balakrishnan, KGJ, Chief Justice of India on Judicial Activism under the Indian Constitution (2009). http://www.supremecourtofindia.nic.in/speeches/speeches_2009/judicial_activism_tcd_ dublin_14-10-09.pdf. Accessed 16 Dec 2016 Joshi A (2016) Cogent environmental science 2:113934. https://www.cogentoa.com/article/10.1080/ 23311843.2016.1139434.pdf. Accessed Jan 2019 Matsunaga K, Themelis N (2002) Effects of affluence and population density on waste generation and disposal of municipal solid wastes. http://www.seas.columbia.edu/earth/waste-affluence-paper.pdf. Accessed 18 Jan 2019 Ministry of Environment, Forest and Climate Change, Government of India (2016) Gazette of India. S.O. 1357(E) Solid Waste Management Rules, 2016. http://www.moef.gov.in/sites/default/files/SWM% 202016.pdf. Accessed 16 Oct 2018 Municipal Solid Wastes (Management and Handling) Rules (2000). http://www.moef.nic.in/legis/hsm/ mswmhr.html. Accessed 12 Oct 2018 Pamnani and Srinivasarao (2014) Int J Civil Eng Technol. ISSN 0976-6316. In: 1996, the percentage of plastic or rubber found in the collected waste was 0.60 percent; by 2011, it increased ten times to reach 10.11 percent Planning Commission of India, Government of India (2018) Report of the task force on waste to energy, vol I. In the context of integrated MSW management. http://planningcommission.nic.in/ reports/genrep/rep_wte1205.pdf Accessed 12 Oct 2018 Press Trust of India (2018) The Hindu. NGT raps state over waste disposal, 31 Aug 2018. https:// www.thehindu.com/news/national/kerala/ngt-raps-state-over-waste-disposal/article24835412.ece Accessed 18 Oct 2018 The World Bank (2018a) Urban development series—Knowledge papers, pp 8–12. https://siteresources. worldbank.org/INTURBANDEVELOPMENT/Resources/336387-1334852610766/Chap3.pdf. Accessed 18 Jan 2019 The World Bank (2018b) Data. https://data.worldbank.org/indicator/SP.URB.TOTL.IN.ZS. Accessed 10 Oct 2018 TNN (2015) Government drafts new waste management norms. The Times of India, 10 April 2015 Waters, Zalasiewicz, Summerhayes, Barnosky, Wolfe, Ors (2016) The anthropocene is functionally and stratigraphically distinct from the Holocene. Science 351(6269):137–147. http://dx.doi.org/10. 1126science.aad2622. Accessed 17 Jan 2019

Chapter 18

Can South African Planning Law and Policy Promote Urban Sustainability in the Anthropocene? Angela van der Berg

Abstract For the first time in history, the majority of the world’s population is urban. The world reached its urban tipping point at the same time as the Earth entered into a new geological epoch, referred to as the Anthropocene. Rapid urbanization and the expansion of cities is a key feature of the Anthropocene. Currently, cities cover 2% of the surface of the planet, yet they consume more than 75% of Earth’s resources. It is estimated that by 2050, 68% of the world’s 9.8 billion people will live in urban areas. Meaningful and urgent action is required to ensure that urbanization is harnessed towards a more sustainable and balanced urban development trajectory. While there are many legal and governance approaches to promoting sustainability within cities, it is increasingly argued that planning law has a specific role to play in ensuring the balanced environmental, social, and economic development of urban areas. The purpose of this chapter is to critically consider whether planning law can in fact promote urban sustainability in the Anthropocene. Specific emphasis is placed on the planning law framework in the South African context. The chapter concludes with some lessons learnt and some considerations for the role of planning law for promoting urban sustainability in the Anthropocene. Keywords Planning law · Urban planning · Urban sustainability · Anthropocene · Sustainable cities · South Africa

A. van der Berg (B) North-West University, Potchefstroom, South Africa e-mail: [email protected] Tilburg Law School, Tilburg, The Netherlands © Springer Nature Singapore Pte Ltd. 2019 M. Lim (ed.), Charting Environmental Law Futures in the Anthropocene, https://doi.org/10.1007/978-981-13-9065-4_18

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18.1 Introduction For the first time in history, the majority of the world’s population is urban (UN 2015).1 Currently 55% of the world’s population lives in cities (UN 2018). It is estimated that by 2050, 68% of the world’s 9.8 billion people will live in urban areas (UN 2018). Notably, the world is experiencing rapid urbanization at the same time as Earth is entering into a new geological era (Biermann et al. 2016). This era, described as the Anthropocene, denotes a new Epoch where Earth’s ecological and planetary systems are dominated and modified by human activity (Steffen et al. 2011). In fact, some scholars argue that the Earth has entered into the “urban anthropocene” as urban based humans, in particular, have become a driver of Earth’s geo-physical changes (Allen et al. 2016). The growth of cities is a key characteristic of the Anthropocene (Allen et al. 2016). Cities are the spatial manifestation of human influence on the planet (Swilling and Annecke 2012). While cities only cover 2% of the surface of the planet, they consume 75% of its resources (Wheeler 2013). Cities embody the social, economic, and political processes that are linked to the rapid transformation of habitats; destruction of ecologies; irresponsible use of resources; and the production of pollutants and carbon emissions that threaten the very systems that cities depend on (Zalasiewicz et al. 2011). Rapidly expanding cities face a multitude of challenges, including rising traffic and congestion; sprawl; extreme urban poverty, poor living conditions; slum dwellers; and risks due to natural disasters and climate change (Revi et al. 2013). Nevertheless, if harnessed correctly, urbanization has the potential to bring transformational change in cities (UN Habitat 2016). Over the past decade, scholars and planners around the world have argued that governments should take the role of planning in achieving a sustainable urban future more seriously (Watson 2016). Notably, in September 2015 the UN adopted its 2030 Agenda for Sustainable Development (2030 Agenda) which includes a set of 17 Sustainable Development Goals (SDGs). The SDGs aim to achieve global sustainable development by 2030. Of particular importance to cities is SDG 11 which declares a global commitment to “make cities and human settlements inclusive, safe, resilient and sustainable”. The goal also frames the context within which urban sustainability must be planned and pursued across the globe. The purpose of this chapter is to critically consider whether planning law can indeed promote urban sustainability in the Anthropocene. Specific emphasis is placed on the planning law framework of South Africa. South Africa is considered to be the most urbanized country in sub-Saharan Africa (UN Habitat 2014). Currently, 53% of the country’s population lives in urban areas and it is projected that approximately 73% of the population will live in cities by 2030, reaching nearly 80% by 2050 1 There is no standardised global definition for “urban” or the “city” (Mazmanian and Blanco 2014).

Descriptions for the terms differ across political and national boundaries and may change over time depending on the growth and evolving spatial form of a particular geographical area (Frey and Zimmer 2001). This chapter refers to “urban/city” interchangeably. It refers to these terms as a delineated local jurisdiction governed by its immediate local authority/municipality.

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(Karuri-Sebina 2016). The country’s planning law framework is aimed at addressing past spatial and regulatory injustices and ensuring integrated and balanced social, economic and environmental development of human settlements across the country. Against this background, this chapter explores (a) the relevance and notion of urban sustainability in the Anthropocene; (b) the role of planning law for promoting sustainable cities; and (c) the compatibility of South African planning law framework for promoting sustainable cities in the era of the Anthropocene. The chapter concludes with some considerations for the role of planning law in promoting sustainable cities.

18.2 The Notion of Urban Sustainability in the Anthropocene Following the acknowledgement that the world is becoming increasingly urban, cities have become the central focus for intervention aimed at ensuring a more sustainable future (Allen et al. 2016). Over the years cities have increasingly taken part in initiatives aimed at promoting sustainable urban development (ICLEI 2012, 2015). As a result, the concept “sustainable city” has become synonymous with almost every urban project and initiative aimed at promoting overall sustainability within city boundaries (Whitehead 2007). Urban sustainability is multi-faceted and complex. SDG 11 requires cities to address issues that are integrated and which arguably includes anything ranging from ensuring the access to basic service provision and adequate housing; to fulfilling the full spectrum of human needs such as access to sanitation-, health-, education-, waste, and transport- services, and ensuring equal access to public spaces, employment- and public participation opportunities (Van der Berg 2017). It also extends to safeguarding cultural and natural heritage; improving vulnerability to disasters; and reducing the impact of human activities on the environment. Several scholars have attempted to provide clarity on each of the mentioned issues. As a result, many different typologies of the sustainable city exist.2 For purposes of this chapter however, the discussion is informed by the notion of urban sustainability as captured in the framing of SDG 11 and its targets.

2 See

Pizarro (2016), Girardet (2017), Whitehead (2012), Hoornweg and Freire (2013), Swilling and Annecke (2012), Jenks and Jones (2009), and Jabareen (2006).

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18.3 The Role of Planning Law for Promoting Sustainable Cities 18.3.1 Planning for Urban Sustainability The planning and management of land and land use falls in the domain of planning law (Van Wyk 2012). Planning law is an area of law that authorizes government authorities to apply a set of legal instruments that can be used to steer urban development whilst conserving the natural environment (Alterman 2013). Planning law further provides for the creation of a sustainable planning framework, as well as for the management of land and land use with the purpose of ensuring health, safety, and welfare of society as a whole (Van Wyk Forthcoming). Planning law guides decision makers and enables them to take account of overarching social, environmental and economic interests when planning for a specific spatial area (Rydin 2011). Planning law also provides certainty with regard to rights, restrictions, and responsibilities in terms of land use and property (Deininger et al. 2010). While the principles and characteristics of planning law vary from country to country, it is generally accepted that planning law does not stand in isolation from other areas of law as it regulates and affects multiple aspects of society, including economic, environmental, social and political issues (Claassen 2013). Most notably, planning law intersects with the domain of environmental law, as it is underpinned by the principle of sustainable development, and is concerned with the regulation and conservation of environmental resources (and rights) in the planning and layout of urban areas (Glazewski and Du Toit 2013). Depending on a country’s system of government, planning may be divided into various categories and performed by different government bodies (Levy 2017). Urban planning usually takes place at the most decentralized level of government that operates closely with local communities (Clark et al. 2010) Urban authorities (municipalities) are involved in both strategic and spatial planning activities in the governing and development of their communities (Morrissey et al. 2017) Strategic planning involves municipalities adopting and enforcing a main strategic planning instrument,3 that includes the municipality’s short- and long-term development vision for the municipal area (Van Wyk 2012). This instrument serves as a rational framework to inform and align budgeting and resource allocation with the development vision of the municipality (Albrechts 2004). It also contains operational strategies, facilitates the division of labor between sector departments within the municipality; and contains incentives to improve performance and governance procedures (Pieterse 2007). Spatial planning, in turn, involves the development and implementation of a variety of instruments that in some instances, articulate a spatial vision for the municipal

3 The

naming of this instrument differs from country to country. In South Africa, this document is referred to as the Integrated Development Plan (IDP). In the European or American context, such plans are referred to as Strategic Plans, Development Plans, or City Development Strategies.

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area4 or in other instances assigns and regulates land use rights5 for specific areas included in the jurisdiction of a municipality (De Visser 2016). Spatial planning is forward looking and place shaping (Paris 2013). Municipalities generally use spatial planning instruments to plan out the long-term future of a specific spatial area and to identify opportunities for growth and development so that land can be managed and used sustainably and in the best interests of the public (Fourie 2014). Both strategic and spatial planning instruments generally have the force of law (Albrechts 2004). Planning influences and guides the way urban spaces are used, enjoyed and developed (Riddel 2004). Planning law can play a significant role in assisting municipalities in promoting sustainable urban development. While there is much debate on the scope of planning laws, planning laws should at the very least empower municipalities to: (a) balance competing interests; (b) shape the built environment of the city; (c) allocate land use responsibly; (d) conserve the natural environment; (e) improve disaster resilience and human safety; and (f) foster social cohesion and inclusion (UN Habitat 2010, 2016; Jepson and Haines 2014).

18.4 Compatibility of Planning Law for Promoting Sustainable Cities: A South African Perspective Urban planning in South Africa is exercised at local government level (De Visser and Poswa 2017). Municipal planning in this context includes the legislative and executive authority of municipalities to manage and regulate the use of land in their demarcated geographical areas of jurisdiction (Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others 2010). Municipal planning also pertains to land management planning, and land development management. Land management planning entails to the power of municipalities to develop, amend, review specific planning instruments such as strategic planning instruments, namely, the IDP or spatial planning instruments, namely, zoning schemes, SDFs, and land use schemes (Spatial Planning and Land Use Management Act 16 of 2013).6 It also includes the authority to develop by-laws for the successful execution of the municipal planning function (Constitution of the Republic of South Africa 1996).7 4 Such

documents are accompanied by a set of plans that illustrate the future spatial form of the municipal area. In developing the plans, planners use tools such as nodes and corridors, and concepts such as densification, containment, protection and growth areas to indicate how land uses in the municipality must be managed to arrive at the desired spatial form (Fourie 2014). In the South African context, such plans are referred to as Spatial Development Frameworks (SDFs). In the European or American context, such plans are referred to as Blueprint Plans, or Master Plans. 5 Such plans are generally referred to as town planning schemes, or zoning schemes/land use schemes. These terms are used interchangeably (De Visser 2016). The land use scheme is the primary tool for changing land use rights (including development controls such as density, height, coverage, building lines, etc.). The land use scheme directly deals with land use rights of a property owner or developer (Fourie 2014). 6 Hereafter SPLUMA. 7 Hereafter the Constitution.

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Land development management, in turn, entails decision-making that is aimed at implementing and enforcing the provisions contained in the planning instruments. Decisions relate, for instance, to the approval or rejection of a zoning application, an application for township establishment, or a decision pertaining to the consolidation and sub-division of land to create new urban areas or promote urban renewal (Habitat Council and Another v Provincial Minister of Local Government Etc Western Cape and Others 2013). The decisions also extend to the erection of buildings, height restrictions, boundary lines, floor area rations, and density (Shoprite Checkers (Pty) Limited v Premier, Gauteng Province and Others 2016). Municipal planning is informed and underpinned by an extensive legal framework regulating the planning function in terms of different sectors.8 A discussion of the different sector laws and policies pertaining to municipal planning is beyond the scope of this chapter. Rather, this chapter discusses the general framework legislation that regulates planning in a broad and general sense. Accordingly, the remainder of this discussion is limited to national framework legislation for planning, namely the Constitution, the Local Government: Municipal Systems Act 32 of 2000,9 and SPLUMA.

18.5 Constitution of the Republic of South Africa (1996) The Constitution is the primary source of all law in South Africa (s2 of the Constitution). It assigns specific powers and functions to national, provincial, and local government (Schedules 4 and 5 of the Constitution). Municipal planning is assigned to local government (Schedule 4B of the Constitution). Municipalities must fulfil all of their planning function in line with the specific objects for local government which include: ensuring the provision of services to communities in a sustainable manner; promoting a safe and healthy environment; and encouraging the involvement of communities in matters of local government (ss 152(1)(b) and (e) of the Constitution).10 These objectives must also be pursued in line with the general developmental mandate of municipalities which requires them to, inter alia, structure and manage their planning processes to give priority to the basic needs of the community, and to promote the social and economic development of the community (s 153(a) of the Constitution).11 The Constitution also assigns other functional areas to local government. These functional areas are specifically relevant to urban development and, 8 Several

national laws and policies regulate municipal planning in the environmental sector, the building sector, the waste sector, the housing sector, public governance sector, and the transport sector, etc. For an in-depth discussion in this regard see (Van der Berg Forthcoming). 9 Hereafter the MSA. 10 Specifically by means of extensive and meaningful public participation and stakeholder engagement. 11 The developmental mandate requires municipalities to work with local citizens and communities to find sustainable ways to meet their needs and improve the quality of their lives. See section B of White Paper on Local Government (1998).

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include, for example, building regulation, electricity and gas regulation, municipal public transport, water and sanitation services, solid waste management and parks and recreation (Schedules 4B and 5B of the Constitution). In fulfilling their planning and other functions, municipalities must respect, protect, promote, and fulfil the rights contained in the Bill of Rights (Chap. 2 of the Constitution). These rights include, for instance, the rights to an environment not harmful to health or wellbeing, property rights, and housing rights (Chap. 2 of the Constitution). These rights can arguably be affected by almost any urban development project or planning activity. Notably, the duty to respect creates a negative obligation requiring municipalities to refrain from developing any law or participating in any conduct that directly or indirectly interferes with the enjoyment of the mentioned rights (Van Wyk and Oranje 2014). The duty to protect, in turn, places a positive duty on municipalities to take legislative measures to protect people against the violation of their rights (Van Wyk 2012). The duty to promote entails municipalities encouraging and advancing the realization of the mentioned rights, while the duty to fulfil requires municipalities to take appropriate legislative, administrative, budgetary and other measures to ensure that people gain access to the mentioned rights where lacking (De Visser 2003). These duties directly apply to the planning and management of urban areas.

18.6 Local Government: Municipal Systems Act 32 of 2000 The MSA is the principle framework legislation regulating local government matters in South Africa. It specifically regulates the strategic planning function of municipalities. The MSA requires every municipality to adopt a single, inclusive and strategic plan for the development of the municipal area (s 25(1) of the MSA). This plan (the IDP) must link, integrate and co-ordinate all other plans and must take into account proposals for the development of the municipality (s 25(1)(a) of the MSA). The IDP must further include: (a) the municipality’s vision for long-term development in the municipality12 ; (b) an assessment of the existing level of development in the municipality which identifies communities which do not have access to basic services; (c) the municipality’s development priorities and objectives; (d) development strategies that are aligned with the planning requirements binding on municipalities13 ; (e) an SDF; (f) operational strategies; (g) a financial plan; and (h) applicable disaster management plans (s 26(a)–(h) of the MSA). Other sector plans that must be added in the IDP further include a local Air Quality Management Plan14 ; the local Waste Man-

12 With

specific emphasis on the municipality’s most critical development needs. terms of SPLUMA. 14 The Air Quality Management Plan (AQMP) is specifically included in the IDP in order to protect human health and improve air quality and to regulate and minimize air pollution (National Environmental Management: Air Quality Act 39 of 2004). 13 In

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agement Plan15 ; the Water Services Development Plan16 ; an Integrated Transport Plan17 ; and the Built Environment Performance Plan.18 The inclusion of these sector plans in the IDPA arguably enables municipalities to address a range of integrated and overarching matters that are all relevant for urban development. Notably, the IDP binds both the municipality and all other persons in the municipal area (s 35(b) of the MSA). As such it provides a grid of legitimization in terms of which municipalities can be held accountable in the fulfilment of their planning function.

18.7 Spatial Planning and Land Use Management Act 16 of 2013 SPLUMA applies to the spatial planning and management of land use throughout the entire Republic. The Act, inter alia, regulates the spatial planning and land use management function of municipalities. With regard to spatial planning, the Act specifies that all municipalities must adopt an SDF for the municipal area (s 20(1) of SPLUMA). The SDF must form part of the IDP19 and all SDFs must include a short term (five years) and long term (twenty years) written and spatial representation (maps) for development of the spatial form of the municipality (s 21(b) and (c) of SPLUMA. The SDF must further include estimates pertaining: to population growth, economic activity, and housing demand across different socio-economic categories (s 21(e)–(g) of SPLUMA). Other components of the SDF include planned locations for future housing and infrastructure developments; strategic assessments of the environmental pressures and opportunities in the municipal area, and spatial locations of environmental sensitivities (s 21(h) and (j) of SPLUMA). SPLUMA further requires all municipalities to adopt and approve a single land use scheme for the municipal area (24(1) of SPLUMA). Land use schemes must 15 The Integrated Waste Management Plan (IWMP) is aimed at integrating and optimizing waste management services in cities and at maximizing efficiency and improving the quality of life of all citizens while the associated environmental impacts and financial costs of waste are minimized (National Environmental Management: Waste Act 59 of 2008). 16 The Water Services Development Plan (WSDP) is a strategic plan that assists municipalities in promoting the right of access to basic water supply and the right to basic sanitation necessary to secure sufficient water and an environment not harmful to human health or well-being (Water Services Act 108 of 1997). 17 The Integrated Transport Plan (ITP) is a strategic planning document that serves to assist municipalities with addressing identified transport challenges in their cities. The ITP serves to integrate transport planning with the spatial and land use planning activities of the municipalities (National Land Transport Act 5 of 2009). 18 The Built Environment Performance Plan (BEPP) is a strategic spatial planning instrument. It directs a municipality’s capital investment to projects which aim to transform the spatial form of the city through the creation of public transport corridors and the delivery of affordable housing on well-located land close to job opportunities (Division of Revenue Act 3 of 2016). 19 Both the IDP and the SDF must be developed in line with specific public participation procedures. See Chap. 4 of the MSA and Chap. 4 of SPLUMA.

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include appropriate categories of land use zoning (depicted in maps) and regulations for the entire municipal area (s 24(2) of SPLUMA). Land use schemes must also include provisions that promote the inclusion of affordable housing in residential land development (s 24(2)(d) of SPLUMA). A land use scheme must promote economic growth, social inclusion, efficient land development, and must strive to minimize threats to public health, the environment and natural resources (s 25(1)(a)–(d) of SPLUMA). Land use schemes have the force of law and bind all owners of land, and users of land in the municipal area (s 26(1) of SPLUMA). Both land use schemes and SDFs must be adopted and implemented in line with specific development principles stipulated in SPLUMA. These principles include the principle of, amongst others, spatial justice,20 spatial sustainability,21 efficiency,22 and spatial resilience.23

18.7.1 The Role of South African Planning Law in the Pursuit of Urban Sustainability: A Matter of Reasonable Compatibility? South African planning law has the potential to play a significant role in assisting municipalities in promoting sustainability in their areas of jurisdiction. The legal framework bestows upon municipalities an exclusive responsibility to determine how the country’s urban spaces are used, enjoyed and developed.24 It also enables municipalities to develop and implement strategic and spatial planning instruments that allow municipalities to: determine the spatial form of their cities; match land use in the urban area with the available resources; conserve the environment and natural resources; enhance resilience and safety; foster social cohesion and inclusion; and balance competing needs and interests in a particular geographical area.25 The legal framework may be argued to assist municipalities in facilitating the development of sustainable cities as portrayed in SDG 11 in terms of the following: 20 Whereby the past and other development imbalances must be redressed through improved access to and use of land. It also includes all planning authorities addressing the inclusion of all persons in the planning processes, with specific emphasis on informal settlements, areas characterized by poverty and deprivation and disadvantaged communities (s 7(a) of SPLUMA). 21 Whereby spatial planning and land use management systems must uphold consistency of land use measures in accordance with environmental management instruments and promote land development in locations that are sustainable and limit urban sprawl (s 7(b) of SPLUMA). 22 Whereby land development optimizes the use of existing resources and infrastructure and minimize negative financial, social, economic impacts of development (s 7(c) of SPLUMA). 23 Whereby flexibility in spatial plans, policies and land use instruments are accommodated to ensure sustainable livelihoods in communities most likely to suffer the impacts of economic and environmental shocks (s 7(d) of SPLUMA). 24 By virtue of assigning “municipal planning” to local government. See the above discussion of the constitution. 25 See the discussion pertaining to IDPS, SDFs and land use and zoning in terms of SPLUMA and the MSA above.

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• SDG 11 is future orientated. It intends to foster sustainable urban development in a manner that minimizes impending development challenges. It is also aimed at addressing current urbanization challenges and at improving the status quo in cities. In a similar vein, South Africa’s planning law and policy framework is both anticipatory and reactive. The law and policy framework includes provisions aimed at anticipating and developing responses to problems that have not yet presented themselves (i.e. requiring municipalities to estimate future urbanization patterns and to set aside spatial locations for housing and infrastructure purposes).26 It also includes provisions that pertain to assessing and addressing problems that demand immediate solutions (i.e. requiring municipalities to identify which communities in the municipal area do not have access to basic services and ensuring access in such instances).27 Planning instruments are embedded in and underpinned by the legal and policy framework. As such, the instruments enjoy legal status and provide a degree of certainty in terms of what communities can expect for future urban development.28 • SDG 11 specifically determines that cities must become inclusive, safe, resilient and sustainable. While, South Africa’s planning law and policy framework does not explicitly state these as objectives, the legal framework is underpinned by the globally recognized principle of sustainable development (Du Plessis 2017). The legal framework also includes provisions that may be argued to address or promote inclusion, safety and resilience, and the broader aspects of sustainability. In terms of inclusion29 the planning law framework can be argued to be people centered and to promote inclusion and the equal enjoyment of the benefits of urban living for all. The legal framework is generally geared towards improving the quality of life of people.30 It also establishes positive and negative obligations on municipalities to ensure that all people enjoy full access to a safe and healthy environment, and enjoy the benefits of access to housing and property rights.31 Municipalities are further obliged to fulfil their planning and other in a manner that serves the best interests of the public (see footnote 30). They must also plan urban spaces in a manner that promotes equal economic opportunities, equal access to basic services and equal access to public spaces.32 Planning instruments, such as land use schemes, further bring people together, by requiring mixed use development which allows housing projects to, for example, accommodate different social and cultural groups. In terms of urban safety and resilience, SDG 1133 South Africa’s legal framework for planning includes strategic and spatial planning instruments that can be used to improve safety and resilience in urban areas. IDPs, for instance 26 See

the above discussion of the components of the SDF as stipulated by SPLUMA. the above discussion of the components of the IDP as prescribed by the MSA. 28 See the discussion pertaining to the MSA and SPLUMA above. 29 See the above discussion of SDG 11. 30 See the above discussion of the MSA. 31 See the above discussion of the Constitution. 32 See the above discussion of SPLUMA and the IUDF. 33 See the above discussion of SDG 11. 27 See

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are required to include disaster management plans which must contain information on disasters that occur frequently in the municipal area, and must provide structures and mechanisms for the prevention, mitigation, preparedness, response, recovery from and rehabilitation of disasters and disaster stricken areas (Van der Berg 2015). SDFs, for example, include an assessment of the environmental sensitivities and risks (health and safety risks, disaster risks, etc.) of specific spatial areas in the municipality and must ensure that development is directed away from such areas (Van der Berg et al. 2016). • SDG 11 envisions a sustainable city as one which caters to a broad spectrum of (often competing) human needs and interests.34 South Africa’s planning law framework provides municipalities with the authority to adopt and implement specific instruments that enables them to promote the harmonious development of urban spaces and to balance competing environmental, social, and economic interests of diverse groups of people in a specific municipal area (Van Wyk 2012). Spatial planning instruments, such as SDFs and land use schemes specifically determine where houses, economic clusters, schools, medical facilities, public open spaces, and retail and recreational sites are situated (Musakwa and Van Niekerk 2013). They also directly determine whether people have access to the mentioned amenities. Land use schemes, for example, determine whether houses and other buildings that form part of the urban fabric are safe for human occupation and use. SDFs in turn, determine whether the mentioned structures are accessible to the people who use them and whether the structures and people who use them have access to supporting infrastructure, such as bulk services (water, electricity, and waste) and transport. The planning law framework further includes strategic and spatial planning instruments that have a strong focus on preserving and enhancing environmental quality and promoting responsible urban development and natural resource use. In developing their SDFs, municipalities have to take stock of the natural environment and available environmental resources and must minimize or prevent damage to the environment and its resources where possible (Dodman et al. 2017). Municipalities may as such not plan for or allow any urban development projects that will result in unavoidable pollution and degradation of the natural environment and its resources. IDPs in turn include specific sector plans, such as IWMPs and AQMPs that are specifically geared towards reducing the impact of urban inhabitants and development projects on the environment.35 • Finally, SDG 11 envisions urban planning to be participatory. The planning law framework specifically requires municipalities to enable people to participate in the planning of their local communities by voicing their needs and concerns through public participation and stakeholder engagement.36 In this regard specific emphasis is placed on suitable public participation procedures and methods for the devel-

34 See

the SDG 11 targets discussed above. the above discussion of the sector plans in IDPs as stipulated in the MSA. 36 See the relevant provisions as discussed in the Constitution, the MSA and SPLUMA. 35 See

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opment of planning instruments (IDPs, SDF)37 which directly affect the way in which urban spaces are used, enjoyed and developed. While the above discussion may come across as particularly optimistic, South Africa’s planning law framework is subject to specific limitations. Firstly, South Africa’s cities have been shaped by the country’s Apartheid planning legacy. Many cities remain characterized by social, economic, and spatial segregation resulting in inadequate access to basic services, irresponsible resource use, and growing poverty and social exclusion (Abrahams and Berrisford 2012). The fixity of the built form of cities, along with the complexity of racial and cultural conflicts through which urban space must be fashioned renders the country’s cities less receptive to rapid or immediate change (Parnell 2014). Secondly, planning laws must be implemented by municipalities who already face challenges in terms of capacity, especially with regard to the financial resources and technical expertise required for drafting the planning instruments (MILE and SALGA 2016). The latter directly effects the quality of the planning instruments, which leads to fragmented urban development and dissatisfied local communities (UN Habitat 2013). Finally, the political and governance climate in which municipalities in South Africa operate, may pose challenges for successful planning. Sustainable urban development is a long-term process. While several planning instruments (such as IDPs and SDFs) contain long-term goals and strategies for future urban development, new municipal councils (political parties) are elected every five years for each municipal area in the country (s 24(1) of the Local Government Municipal Structures Act 117 of 1998). Each new council redefines the development goals and priorities inherited from the previous council. Such changes may hamper long-term success in terms of sustainable urban development as each new council and administration may envision sustainability differently, and may favor different aspects of urban sustainability over others (SALGA 2015). Municipal election cycles therefore interrupt or influence the success of long-term goals and strategies for sustainable urban development. It is for these practical reasons, that South Africa’s planning law and framework can be said to be reasonably compatible with promoting urban sustainability as envisioned in SDG 11.

18.8 Concluding Remarks and Future Directions for Planning Law for Promoting Sustainable Cities The discussion of the South African planning law framework illustrates that planning can play a valuable role in promoting urban sustainability as understood in SDG 11. Planning legislation enables municipalities to guide future development and to influence the distribution of human activities and needs arising from such activities in a particular spatial area. It provides for the rational organization of urban land uses and the linkages between them to balance the demands for development with the need 37 See

the relevant provisions as discussed in the MSA and SPLUMA.

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to protect the Earth’s natural systems, and to achieve specific social and economic objectives. In terms of SDG 11 specifically, the planning instruments provided for in the South African planning law framework enables municipalities to: increase access to housing, basic services, safe public spaces and transport; protect the environment and minimize the impact of urban development on the environment; and to reduce disaster risk. Planning also takes place through directly involving community members in the decision-making and governance of urban areas. The South African case however also serves to illustrate that planning law is not immune to challenges. Depending on the context, the successful implementation of planning legislation can be limited by administrative or bureaucratic processes; the availability of financial, human, or technical resources; including politics, or embedded social or cultural norms. Any consideration of planning law and the extent to which it promotes urban sustainability must take place within an understanding of the scope and limitations of the planning function itself.38 It is also necessary to consider the factors which shape the socio-spatial aspects of cities, the politics behind the municipal structures that attempt to manage them, and any other significant demographic and environmental challenges which cities face. Ultimately, the success or failure of the role of planning law in promoting urban sustainability significantly depends on whether planning laws equip municipalities with the necessary tools to flexibly and comprehensively deal with development challenges. Nevertheless, it may be argued that planning law serves as a valuable area of law that enables municipalities to address and respond to some of the inseparable features or consequences of the Anthropocene. Acknowledgements This work is based on research conducted with the financial support of the National Research Foundation of South Africa (Grant No. 115581). All viewpoints and errors are the author’s own.

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38 For example, planning does not fully control development. It aims to steer and guide development.

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Part IV

Research Agenda for Sustainable and Equitable Environmental Law Futures in the Anthropocene

Chapter 19

Pathways to Equitable Sustainability in the Anthropocene: An Agenda for Legal Research Michelle Lim

Abstract This concluding chapter synthesises the themes and principles highlighted throughout the book into a research agenda for the development of environmental law amidst the uncertain futures that the Anthropocene may bring. Keywords Environmental law futures · Transformative approaches

19.1 Introduction The unprecedented human-induced disturbance to our Earth system calls for transformative approaches to our relationships with our planet and ourselves. Shaping desirable futures for our planet requires us to recognise the historical inequities in contributions to undermining the stability of the Earth system. At the same time, we need to acknowledge the disproportionate impact bourne by those who have contributed insignificantly to moving us beyond the ‘safe operating space for humanity’1 (Satterthwaite 2009; Rockstrom et al. 2009; Malm and Hornborg 2014; Steffen et al. 2015). The new frontiers of the Anthropocene require us to navigate through uncertainty and surprise. The use of the present continuous ‘charting’ in the book’s title signifies an enduring quest for equity and sustainability. The title also conveys planning directed at ensuring continued human development which avoids exceedance of planetary boundaries (Rockstrom et al. 2009; Steffen et al. 2015a). Rules and institutions play an important role in shaping desirable and sustainable futures (Biermann et al. 2012a; Bai et al. 2016). Despite this, the role of law in sustainability is often overlooked (Lim and Allan 2016). Long-term equitable

M. Lim (B) Adelaide Law School, University of Adelaide, Adelaide, Australia e-mail: [email protected] 1 As discussed in Chap. 1, the ‘safe operating space for humanity’ refers to the planetary-scale limits

that human activity needs to stay within to maintain the function of the Earth system in a manner which will allow continued human development (Rockström et al. 2009). © Springer Nature Singapore Pte Ltd. 2019 M. Lim (ed.), Charting Environmental Law Futures in the Anthropocene, https://doi.org/10.1007/978-981-13-9065-4_19

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sustainability2 relies however on legal practitioners, scholars, judges and policy makers being able to make optimal decisions in the present and for the future while faced with significant uncertainty. More fundamentally, equitable and sustainable futures in the Anthropocene require radical reform and redesign of current governance and political systems at local to global scales (Bai et al. 2016). The aim of this book has been to explore the role and potential of law to develop pathways towards equitable and sustainable futures in the face of global environmental change. The overarching research question posed in Chap. 1 and interrogated across the book is: How can law facilitate equitable futures on planet Earth within a safe operating space for humanity?

As such, a range of plausible future narratives of how environmental law needs to respond to the current epoch have been examined across this book. This final chapter draws together resultant recommendations that emerge from this examination to present 5 Research and Action Priorities (RAPs). The focus on both action and research is due to urgency with which the challenges of the Anthropocene need to be addressed. Inquires into the redesign of law and governance need to be ultimately channelled towards pathways and outcomes for better futures. The agenda below is based on the fundamental premise of the indivisible and co-evolving nature of social and biophysical systems (Bai et al. 2016; Leach et al. 2018) and visions of a ‘Good Anthropocene’3 (Bennett et al. 2016). The agenda thus recognises that in the Anthropocene equity and sustainability must be progressed in unison. To address the complex social-ecological challenges of our times, five interconnected Research and Action Priorities for the further development of law are drawn from the preceding chapters: – – – – –

RAP 1: Reframe our relationships with the Earth; RAP 2: Develop integrated approaches; RAP 3: Harness the role of law; RAP 4: Mobilise new actors and empower action at multiple governance scales; RAP 5: Enable transparent and responsive governance and decision-making

The urgency of further investigation is explained under each RAP while examples are highlighted from across the book to suggest directions that deeper inquiry could take.

2 Chapter 1 introduced the term ‘equitable sustainability’. The concept of equitable sustainability has been developed by Leach et al. (2018) to recognise the interconnected co-evolving nature of equity and sustainability. Equitable sustainability encompasses both the desirable space for human development in the Anthropocene and the pathways required to get there. The term emphasises the indivisible nature of social-ecological systems and the need to pursue equity and sustainability objectives in tandem. 3 Bennett et al. (2016) use the term ‘Good Anthropocene’ to denote a ‘just, prosperous and ecologically diverse world’. In doing so they encourage us to move beyond scare scenarios of bleak futures and to envisage instead futures which are socially, economically and ecologically desirable.

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19.2 Research and Action Priority 1: Reframe Our Relationships with the Earth A clear theme that emerges from the chapters is the need to change our current means of interacting with the natural world. de Andrade Corrêa and Venâncio (Chap. 4) emphasise that we must identify the underlying drivers of unsustainable human behaviour and thus change the rationales which underpin our laws and policies. Doing so, they argue, will enable these instruments to provide effective and feasible solutions. At the same time, as law represents and shapes the values of society, a fundamental first step is to interrogate the theoretical framings which characterise current human behaviour. The dominant framings of our relationships with the planet and each other have undermined the function of the Earth System while concentrating the benefits reaped from such exploitation in the hands of a few. RAP 1 therefore highlights the need to: (1) move beyond neoliberal capitalist framings of human well-being; and (2) expand exploration of broader framings of human well-being and the interactions between humans and nature. In doing so, the aim is to motivate the development of more nuanced and inclusive relationships between humans and nature to guide human activity in the Anthropocene.

19.2.1 Moving Beyond the Neoliberal Capitalist System The neoliberal global capitalist worldview underpins much of modern political systems at multiple governance scales. This predominant worldview is increasingly recognised as a driver of both inequity and unsustainability (Steffen and StaffordSmith 2013; Malm and Hornborg 2014; Bai et al. 2016; Leach et al. 2018). At the same time, modern economics and associated globalised technological systems obscure the unequal exchange of biophysical resources, labour and land (Malm and Hornborg 2014). It is therefore unsurprising that the fairness of market mechanisms has been identified as key to ensuring that equity and sustainability goals can be achieved simultaneously (Steffen and Stafford-Smith 2013). The neoliberal capitalist underpinnings of global discourse also explain why despite lip-serviced paid to the need for greater equity, actual progress is stymied by false equivalences between human well-being and economic activity (Steffen and Stafford-Smith 2013). By extension, false dichotomies are often manufactured between human well-being and environmental integrity while environmental governance is inaccurately portrayed as a trade-off between effectiveness, efficiency and equity (Biermann et al. 2012b). Chowdhury (Chap. 14), for example, highlights that in the Indian context the creation of jobs is framed as being at odds with environmental protection. This fallacy finds support from the judiciary who leave it to the State to regulate supposed trade-offs. Meanwhile, unsustainable consumption practices can be particularly pronounced where status hierarchies and significant economic and

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social inequities persist (Leach et al. 2018). At the same time, the waste generated from unsustainable consumption creates sustainability challenges not only due to the exponential growth in the volume of such waste but also due to the dramatic change in its character and composition (Kaur, Chap. 17). The industrial revolution has lead to exponential expansion in economic and technical development. It has, however, coincided with unsustainable exploitation of natural resources (Steffen et al. 2015a; Zhou, Chap. 3). As flagged in Chap. 1, we need to reframe narratives of competing interests of equity and sustainability and focus instead on developing multiple forms of capital (Chambers and Conway 1992), freedoms (Sen 1999) and understandings of human well-being which do not rely on raising consumption (Kubiszewski et al. 2013; Steffen and Stafford-Smith 2013; Costanza et al. 2014). The role of the legal sphere is to facilitate and incorporate these broader framings in legislation and in judicial decisions. Berros (Chap. 2) highlights how alternatives to capitalism are indeed finding their way into law. This is particularly so in the Andean region of Latin America. Here the rights of nature discourse has emerged against a backdrop of the popularisation of concepts such as “Buen vivir, Vivir Bien” (Spanish), sumak kawsay (Indigenous quichua language) and suma qamaña (Indigenous aimara language). Each of these concepts provides similar alternatives to capitalism that focus on ways of living which are community centric, ecologically balanced and culturally sensitive (Balch 2013; Berros, Chap. 2). Such framings present worldviews which move beyond the natureculture dichotomies presented by neoliberal capitalist understandings of the world (Berros, Chap. 2). Similarly, in 2012, the 18th Chinese Peoples’ Congress adopted ‘eco-civilisation’ as China’s national development strategy. The concept requires a fundamental shift in ethical, political and scientific approaches and has been defined as the need to respect, accommodate and conserve nature and to prioritise protection of ecological integrity (Zhou, Chap. 3). Having identified the current prevailing worldview as a key contributor to inequities and unsustainabilities the next step is to engage deeply with more meaningful framings of human-environment relationships. The section that follows highlights some of the broader framings that have emerged across the book as well as the means to which a new relationship between humans and the planet might be achieved.

19.2.2 Exploring Broader Framings of Our Relationships with Nature and Human Well-Being There is growing recognition at the international level of the significant value of diverse perspectives, practices and disciplines in crafting responses to addressing the challenges of global environmental change and redefining the dominant framing of our relationships with nature. This is evident, for example, in the work of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) which champions the fundamental and integral role of culture and diverse

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knowledge sources in characterising human-environment relationships. In doing so, IPBES appreciates and elevates the role of Indigenous and cultural knowledge in informing policy and practice and our understanding of these relationships (Díaz et al. 2018). Accommodating the diverse worldviews of the relationships between humans and their role in the Anthropocene is, however, potentially challenging. This is because it requires not only technical expertise but also consideration of the varied beliefs, assumptions, values and worldviews that shape different framings of human-environment relationships (Bai et al. 2016). Across this volume, broader understandings of human-environment relationships have been explored in the context of their incorporation within legal frameworks and legal scholarship. Much of this discussion has called for framing of equity to include not only equity between humans of the present but also humans of the future as well as non-human beings. Indigenous knowledge systems are recognised as important sources for the overhaul required for a more sustainable relationship with our planet (Berros, Chap. 2; Liljeblad, Chap. 13). The incorporation of Indigenous worldviews into legal systems has, to date, occurred predominantly through processes which advocate for the rights of nature. Berros (Chap. 2) highlights, for example, the incorporation of Pachamama into the Constitutions of Ecuador and Bolivia and Madre Tierra into Bolivian legislation. There is scope for developing additional means in which Indigenous worldviews and governance systems can enable reform in existing legal frameworks. Examples include the elevation not only of Indigenous knowledge but also Indigenous Law by facilitating legal pluralism such as through Indigenous First Law (Lim et al. 2017). Understandings of human-nature relationships that echo those seen in Indigenous systems are also being explored through the development of Ecological law (Cliquet, Chap. 5). Ecological law calls for a fundamental transformation in environmental law which reverses human dominance over nature. Environmental law, it is argued, reinforces this dominance. Ecological law therefore calls instead for a relationship with the natural world which emphasises human responsibility for nature as the foundation of all law from constitutions to property, corporate and human rights and even conceptualisations of state sovereignty (Cliquet, Chap. 5). At the same time, and the Chinese concept of ‘eco-civilisation’ discussed above (Zhou, Chap. 3) presents yet another example of how the need to reconfigure our interactions with the Earth is increasingly recognised and incorporated in law. RAP 1 emphasises the importance of further research which expands the theoretical underpinnings of our relationships with the planet. Importantly, it calls for an extension of the discussions which have occurred across this book to explore how law could facilitate a new relationship between humans and the Earth and ultimately pathways towards desirable, equitable and sustainable futures in a Good Anthropocene.

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19.3 Research and Action Priority 2: Developing Integrated Approaches The overarching planetary challenge of our times is to ensure a good quality of life for all while restraining human activities within ‘scientifically informed boundaries of sustainability’ (Dearing et al. 2014). Meanwhile, the reframing of humanenvironment relationships called for in RAP 1 advocates for incorporation of multiple worldviews which are alternatives to current neoliberal capitalist framings of human well-being. This requires pluralistic appreciation of what makes life worth living. At the same time, the hyper-connectivity and complexity of the Anthropocene and the interconnectedness of socio-ecological systems across a range of scales mean that new thinking and integrated approaches are required to simultaneously pursue global equity and sustainability ambitions (Steffen and Stafford-Smith 2013; Leach et al. 2018). At the global scale, integrated legal and institutional approaches are required which reflect the interconnected nature of planetary boundaries (Steffen et al. 2015a; Sterner et al. 2019). This is reiterated across this book through chapters which explore links across legal systems and corresponding boundaries of biosphere integrity and climate in the terrestrial context (Koviˇc Dine, Chap. 8); climate, biosphere integrity and ocean acidification (Minas, Chap. 7); climate, freshwater use and geochemical flows (Kinna, Chap. 9) and biosphere integrity and climate in the Antarctic context (Liu, Chap. 10). In a similar vein, de Andrade Corrêa & Venâncio (Chap. 4) argue that if International Environmental Law is to guide sustainable and desirable futures in the Anthropocene it needs to move beyond a conservation or protection focus and to mainstream environmental considerations into economic and social decisionmaking. The chapters have also highlighted the interaction of sustainable use, environmental protection, economic growth and human well-being at the national level (e.g. Tanaka, Chap. 6; Chowdhury, Chap. 14; Kaur, Chap. 17; van der Berg, Chap. 18). These intersecting interests also often then manifest in how countries act on the global stage. Liu (Chap. 10) highlights, for example, how China’s actions in the Antarctic reflect attempts to balance domestic research and fishing interests. Global aspirations of integration at the national level are reflected, for example, in Aichi Target 11 which calls, among other things, for conservation to be ‘integrated into the wider landscape and seascape’ (Tanaka, Chap. 6). Tanaka emphasises that to achieve Target 11 and ultimately stem the trajectory of extinction of the Anthropocene, integration needs to occur beyond the boundary of conventional protected areas and to include secondary vegetation, urban and suburban areas as well as marine and coastal spaces. In the context of cities, van der Berg (Chap. 18) underscores the need to consider political, demographic and environmental factors which impact sustainability. Focusing on the example of South Africa, van der Berg highlights the social, economic and spatial segregation which continues to characterise many cities as a remnant of the country’s Apartheid planning legacy. The challenges to adopting more integrated approaches limit the capacity of South African cities to respond to the rapid change.

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It is thus widely accepted that integrated approaches are fundamental to addressing the challenges of the Anthropocene. How though, do we achieve this? Specifically, what advances are needed across the legal sphere to facilitate such integration? RAP 2 identifies three areas which are most likely to enable progress in holistic approaches to environmental governance. First, the use of systems thinking and systems approaches are presented as a means to manage and understand the connections and feedbacks across complex socio-ecological systems, and corresponding regulatory institutions and instruments, in the face of global environmental change. Next, the focus on transdisciplinarity acknowledges the futility of lawyers acting alone and by the same token the essential contributions that the legal discipline can and does make. Finally, the discussion of instrumental and institutional coordination highlights the need for restructure and redesign of law and governance in order to facilitate the integrated, transdisciplinary and effective systems-based governance needed in the Anthropocene.

19.3.1 Systems Thinking The growth in awareness of the interconnected nature of social and biophysical systems has led to increasing calls for research groups and policy makers to adopt systems approaches when navigating the complexity of the Anthropocene (Newell et al. 2011; Bai et al. 2016; Leach et al. 2018). Systems approaches provide a way to consider multiple interacting components at the same time. It places as much emphasis on describing the interactions between objects in a system as it does on the objects themselves (Clayton and Radcliffe 1996). Systems approaches appreciate that focusing solely on a particular aspect of reality often overlooks essential issues, leads to fragmented responses and rarely provides long-term solutions (LoPucki 1996–1997; Newell et al. 2011). Attempts to address all components of a complex system can however result in one drowning in detail (Newell and Proust 2012). Hence, a key component of systems approaches is to focus on identifying the feedbacks in the system. Feedbacks occur when impacts on one component of the system create a cycle of impacts on other components of the system which over time have an indirect effect on the first component. The aim of systems approaches is to achieve ‘intelligent sophisticated reductionism’ by learning ‘just enough’ about feedbacks in the system to explain the main effects (Clayton and Radcliffe 1996). As discussed in Chap. 1, equity and sustainability are intrinsically connected in complex social-ecological systems from the local to the global scale of the Earth system. As such, planetary boundaries are also connected to each other through a series of feedback loops. Understanding feedbacks across economic, social and biophysical spheres is thus essential if we are to achieve equitable-sustainability in the Anthropocene (Leach et al. 2018). Feedbacks can magnify small changes across social-ecological systems and thus very quickly produce significant change due to the phenomena of emergence. Emergence is a distinctive trait of complex systems.

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It arises due to the dynamic relationships between the cycle of feedbacks across the system and results in new properties and processes which ‘emerge’ from the system (Capra and Luisi 2014). Law and policy which fails to understand the complex dynamic relationships across social-ecological systems is likely to be ineffective at best and is prone to result in perverse outcomes. Sterner et al. (2019) extend calls to address multiple planetary boundaries simultaneously to the domains of policy and governance. They reiterate the need to address planetary boundaries in tandem as policy approaches which only focus on one boundary are likely to ameliorate human impacts in one area while intensifying threats to another. In the context of the climate change and biosphere integrity boundaries, for example, Cliquet (Chap. 5) highlights the issues that arise when international commitments for restoration, particularly in terms of forest ecosystems, have a climate change mitigation focus. Such approaches are often not committed to restoration of ecosystems to a fully functioning state. These initiatives can also be implemented to the detriment of other ecosystem types e.g. tree planting in grassland ecosystems. Understanding feedbacks across social-ecological systems at multiple scales is thus important not only for appreciating and forecasting where economic, social and environmental impacts may occur. This understanding is also key to developing interventions to reverse such feedbacks so as to simultaneously reach desirable outcomes for equity and sustainability (Leach et al. 2018). There is therefore an urgent need to shift from current linear approaches which focus solely on one or a handful of issues. The incorporation of systems theory into environmental law scholarship is nascent but growing (Craig 2013; Ruhl et al. 2017). The literature acknowledges the need for environmental law to address complex ecological systems (Elliott 1992; Craig 2013, Ruhl et al. 2017) and has considered legal systems as complex systems in their own right (LoPucki 1996–1997; Ruhl et al. 2017; Ruhl 2008; Kim and Mackey 2014). There remains, however, the need for greater use of systems approaches for the design and reform of legal and institutional frameworks. Minas (Chap. 7) illustrates the importance of systems approaches in the context of the ocean-climate nexus. He points out that the complex feedback mechanisms between climate change and marine biodiversity on the one hand, and climate change and ocean acidification on the other create a compelling case for a more systematic law and policy approach to these issues. Similarly, in the context of the proposed ‘Global Pact for the Environment’, Kotzé and French (2018) advocate strongly for the adoption of a systems approach in order to implement Earth system approach to law. Gussen (Chap. 16), in turn, recommends the mechanism of charter cities as potentially providing a means to embrace systems approaches in governance systems. Here, it is argued that charter cities can facilitate greater self-organisation, in contrast to the hierarchical organisation of current governance systems. Charter cities are thus likely to be better able to address the complexity of global environmental change. Kotzé and French (2018) coin the term Lex Anthropocenae to denote the transformative public and private global governance efforts required to protect Earth system integrity and tackle the socio-ecological crisis of the Anthropocene. RAP 2 sup-

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ports progress towards Lex Anthropocenae which has at its core an Earth system perspective that is concerned with the interconnected nature of human-environment relationships and correspondingly strides towards a stewardship approach to global environmental governance which promotes an ecological rule of law, global democracy, global ecological citizenship and the rights of nature (Bosselmann 2016; Kotzé and French 2018). The sections that follow call for greater transdisciplinary, instrumental and institutional collaboration which are important for realising systematic approaches to the Anthropocene.

19.3.2 Transdisciplinarity A theme that resonates loudly across the book is that the complexities of the Anthropocene cannot be addressed in the absence of transdisciplinary collaboration. Every author in this volume has either explicitly stated the need for transdisciplinary approaches or at minimum alluded to the incorporation of understanding from across the sciences and social sciences in order to achieve effective environmental governance and to reach meaningful legal decisions. Zhou (Chap. 3), for example, emphasises the necessity of collaboration across disciplines so as to ‘reshape the rules of human behaviour’ in a meaningful way. Meanwhile, Jafarzadeh (Chap. 12) points out that such collaboration and the corresponding integration of knowledge is key to addressing issues of effectiveness and legitimacy. Kinna (Chap. 9) in turn highlights the importance of bringing together research in international water law, water security and hydro-politics to achieve effective mechanisms for transboundary cooperation and dispute resolution. Further, as will be discussed under RAP 5, scientific assessments and data-driven approaches are not only essential for avoiding tipping points in the Earth system, they are also key to transparent and accountable environmental governance (Jafarzadeh, Chap. 12). Collaboration across disciplines is also key to fashioning more meaningful judicial remedies. Phelps et al. (Chap. 15) indicate that while it is widely accepted that harm should be punished or compensated, articulating appropriate remedies is often challenging. The design of appropriate remedies, they point out, necessitate, among other things, the translation of environmental restoration science and cultural harm into claims for damages that can be pursued through the judicial system. To this end, SoIntsev (Chap. 11) emphasises that expert examination is increasingly important to ensure appropriate scientific and technical knowledge informs judicial decisionmaking. Many authors (e.g. Berros, Chap. 2; Zhou, Chap. 3, Jafarzadeh, Chap. 12) point to the important opportunity that the Anthropocene provides to spur requisite action towards greater integration across disciplines and knowledge exchange with broader publics beyond formal academic institutions. Environmental law research in the Anthropocene can no longer occur within a legal vacuum and must engage with broader methodologies and understandings of the dynamic social-ecological systems

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which define our planet and our interactions with the natural world. This is so even for research firmly grounded in doctrinal interpretation in order to give effect to the true context of the Anthropocene within which the law must now be understood and applied.

19.3.3 Instrumental and Institutional Coordination Concerns over the fragmented nature of the instruments and institutions required to achieve desirable futures in the Anthropocene have been raised across the book (e.g. Zhou, Chap. 3; Minas, Chap. 7; SoIntsev, Chap. 11). There is correspondingly the need for greater orchestration across governance systems. A key task is to identify appropriate combinations of instruments, institutions, implementation strategies, national policies and international actions to enhance and transform existing legal and policy frameworks (Sterner et al. 2019). Minas (Chap. 7), cites the regulation of emissions from ships as an illustrative instance of the need to address interaction and alignment across a range of treaty regimes. He also highlights the fact that negotiators and signatories to the United Nations Convention on the Law of the Sea (UNCLOS) could not have anticipated the current context of global environmental change, and in particular climate change, in which UNCLOS must now be applied. Minas therefore stresses the need to explicitly address the interface between UNCLOS and climate-related regimes. Kinna (Chap. 9) highlights the important role that legal instruments play in facilitating coordination. He refers to the long history of binding river treaties which have not only played a vital role in enabling transboundary cooperation but are also valued by states due to their capacity to bring predictability and transparency to interstate relations. Kinna, recognises, however, the particular challenge to existing legal frameworks that the Anthropocene creates. He therefore advocates for greater understanding of the geopolitical factors that impact transboundary water management. Similarly, Liu (Chap. 10) draws attention to the status quo of global cooperation in Antarctica potentially being challenged both by the biophysical changes of the Anthropocene but also shifts in centres of global power. This again highlights the importance of greater coordination across institutions and awareness of geopolitical contexts in order to bring about such collaboration. While more work is ultimately needed to identify how greater coordination across instruments, sectors and institutions might be brought about, the chapters provide reasons for optimism. Minas (Chap. 7) draws attention to the growing number of international partnerships, beyond the process of the United Nations Framework Convention on Climate Change, which are focused on collective action on blue carbon.4 On the legal front, Kinna (Chap. 9) points to the existence of two complementary global water conventions—the UN Watercourses Convention5 and the 4 Blue

carbon refers to the capacity of marine ecosystems to sequester carbon in the atmosphere. on the Law of the Non-navigational Uses of International Watercourses 1997.

5 Convention

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UNECE Convention.6 While coordination across these Conventions is an ongoing endeavour, having both Conventions in force provides much support for consolidating international law principles relating to international watercourses while filling governance gaps in regional basin agreements (Kinna, Chap. 9). RAP 2 underscores the fundamental nature of integrated responses to addressing the social-ecological issues of our times in an effective and meaningful manner. To achieve this, systems thinking needs to be at the core of legal and governance approaches As discussed above, systems approaches to law remain under-researched. RAP 2 therefore calls for greater scholarship into a systems approach to the law and the ramping up of collaborations across disciplines, instruments and institutions to facilitate the integration required to advance equity and sustainability simultaneously.

19.4 Research and Action Priority 3: Harnessing the Role of Law Legal frameworks and corresponding governance institutions have a critical role in facilitating the shift in behavioural patterns towards a ‘Good Anthropocene’. Law also has much to contribute to enhanced procedural and recognitional equity, due to its longstanding jurisprudential traditions which include rights based approaches as well as concepts of natural justice and procedural fairness found in administrative law. The task for law, and by extension the lawyers and law-makers of the Anthropocene, is to design instruments and institutions so that they might not only include an understanding of the complexities of equity, sustainability and the interactions across these systems but also shape pathways to a future within a space of equitable sustainability. RAP 3 focuses on (1) drawing on and extending existing and emerging legal principles; (2) harnessing strides made in the advancement of rights-based approaches; (3) exploring legal mechanisms across the broad legal landscape.

19.4.1 Applying and Extending Existing and Emerging Legal Principles Substantial jurisprudence and legal scholarship has emerged over the last few decades around a range of environmental law principles. The extensive ground trod by law is, however, often insufficiently considered in broader sustainability management and environmental governance circles. A stand-out recent example is the United Nations Sustainable Development Goals (SDGs). Despite international law being at the forefront of shaping global understanding of sustainable development (French, 2010), the role of international law has been paid inadequate attention in the framing 6 United Nations Economic Commission for Europe Convention on the Protection and Use of Trans-

boundary Watercourses and International Lakes 1992.

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of the SDGs. Intergenerational equity, for example, considered in the legal arena as fundamental to understandings of sustainable development, is not included in any of the goals or targets and receives only cursory mention in the broader 2030 Agenda (Lim et al. 2018). A key point emphasised in RAP 3 therefore is to harness the important existing work that has been done in law when developing strategies for a thriving planet of the future. This book has explored a range of established and emerging environmental law principles and their application in the Anthropocene. This section highlights the discussion that has occurred across the book and identifies other principles that should also be harnessed and developed. In Chap. 4, de Andrade Corrêa and Venâncio advocate a shift in environmental governance towards ‘Sustainable Development Law’. Such an approach has the principle of sustainable development at its core and aims to address economic development, ecological integrity and social justice in a coherent manner. The authors draw on Voight (2013) to argue that in order to achieve integration across the 3 pillars of sustainable development, environmental law must be assessed to identify potential “negative incentives” for unsustainable behaviour; further, legal principles and mechanisms that enable an incorporation of the true value of nature into policy and decision making should be identified and mainstreamed in order to promote the transformational changes needed to face current planetary challenges. de Andrade Corrêa & Venâncio emphasise that such an a approach would also facilitate human development which occurs within the safe operating space of planetary boundaries. The chapter’s key contributions lie in the application of sustainable development in the context of the Anthropocene and correspondingly the proposal to embrace sustainable development law as the ‘International Environmental Law 2.0’ required to address the complexities of this epoch in a meaningful and effective way. In Chap. 5, Cliquet highlights the emergence of an international duty to restore. Citing the 2018 judgment of the International Court of Justice in Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and the numerous references and obligations to restoration in international legal instruments, Cliquet argues that a legal duty to return an ecosystem to the state it was in prior to the occurrence of environmental damage has matured into an obligation of customary international law. Cliquet also highlights the recognition of active restoration measures in Costa Rica v Nicaragua. The restoration obligation thus requires states to facilitate the recovery of species or ecosystems. The emergence of the duty to restore is particularly timely given the magnitude of global threats to biodiversity and the corresponding impacts to human well-being. Also recognising the urgency of avoiding transgression of the biosphere integrity planetary boundary, Koviˇc Dine (Chap. 8) calls for the extension of the principle of common concern to the world’s forests. Koviˇc Dine argues that particularly in the Anthropocene, the biodiversity and climate mitigation benefits of forests mean that even though forests are located within the territory of individual states their protection and management are of interest to all of humankind. Correspondingly, she argues, the international community has the obligation to cooperate to ensure the health of the planet’s forest ecosystems. Kinna (Chap. 9) also points to the further

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development of the principle of common concern in the context of regional watercourses. He highlights the concept of ‘regional common concern’ (Magsig 2011) for shared transboundary basins as providing a useful normative framework for fostering water security. The Anthropocene thus provides an opportune moment to extend the principle of common concern to a broader range of issues and contexts. Chowdhury (Chap. 14) and Phelps et al. (Chap. 15) discuss the importance and limitations of the polluter-pays principle. Phelps et al. (Chap. 15) emphasise that holding perpetrators of environmental harm legally and financially responsible is key to future sustainability particularly in the Anthropocene. They also highlight how environmental liability suits can play an important role in operationalizing the principle. This is because such an approach necessitates consideration of the degree of harm caused and from there design an appropriate remedy. Chowdhury (Chap. 14) illustrates how the polluter-pays principle has been embraced in Indian jurisprudence. She laments, however, that the utility of the principle has been diluted due to the difficulty in establishing a causal link in environmental cases and by extension the often prohibitively high evidentiary burden placed on the petitioner seeking compensation for environmental harm. This is exacerbated by the general unwillingness of the courts to award exemplary damages. The end result is that in the Indian context perpetrators of environmental harm are widely able to pay to pollute. Similarly, Phelps et al. (Chap. 15) point out that the criminal sanctions and fines issued for environmental harm are often insufficiently high to create meaningful deterrents. They therefore suggest that increasing such burdens could have an important role especially in the context of large-scale environmental harm. Meanwhile, Chowdhury (Chap. 14) recommends clarifying and extending the role of implementing agencies in order to better implement the polluter-pays principle. The capacity of such agencies to provide injunctive relief is also presented as having the potential to reduce the burden on the petitioner and to achieve better environmental outcomes. Though not addressed explicitly in this book, common but differentiated responsibilities and the precautionary principle are further principles which warrant further exploration in the context of equitable-sustainability in the Anthropocene. As discussed in Chap. 1, those who have contributed the least to undermining the integrity of the Earth system will likely suffer the most from any shifts beyond Holocenelike conditions. The historic inequalities between states continue to play out at the global level due to the cumulative impacts on the planet which become evident over time. This is seen most clearly in the climate system (Steffen et al. 2015b). This also manifests in other effects of the Great Acceleration. Rich countries, for example, continue to be responsible for 46% of global waste production (Kaur, Chap. 17). Common but differentiated responsibilities is therefore an important guiding principle for global negotiations. This principle could be implemented through mechanisms such as technology transfer; taxes on resource use in rich countries in combination with appropriate investments in developing countries; payments for ecosystem services or global trust funds (Steffen and Stafford-Smith 2013). Application of the precautionary principle is particularly apt when addressing the uncertainty inherent in the Anthropocene. There is likely to be high levels of scientific

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certainty in determining the limits of planetary boundaries at multiple scales. The urgency with which the threats to Holocene-like conditions need to be addressed mean, however, that the Anthropocene is a classic example of where uncertainty cannot be used as a reason for inaction. This is particularly so as respecting planetary boundaries provides us with the opportunity to respond to early warning signals in the Earth system and thus potentially avoiding catastrophic impacts to the functioning of the planet (Steffen et al. 2015a).

19.4.2 Human Rights and Basic Human Needs The section above highlighted the illustrious history of legal scholarship and jurisprudence which has advanced the development of sustainability-related principles. Similarly, addressing the range of equity issues of the Anthropocene requires acknowledgement and development of the progress made by law in addressing issues of equity particularly in the area of human rights. The relationships between human rights and the environment has been examined across this book (e.g. Berros, Chap. 2; Zhou, Chap. 3; de Andrade Corrêa and Venâncio, Chap. 4; Kaur, Chap. 17; van der Berg; Chap. 18). At the same time, a range of examples have been cited which demonstrate increasing recognition within the legal sphere of the need to concurrently address human rights and environmental concerns. SoIntsev (Chap. 11) notes that United Nations Human Rights treaty bodies increasingly recognise the convergence of these issues in relation to climate change. He notes the recent release of a statement on climate change and human rights by the Committee on Economic, Social and Climate Rights as well as a growing body of academic and grey literature which draw attention to the new challenges that climate change creates for the protection of human rights. Similarly, Liljleblad (Chap. 13) highlights how Universal Periodic Review, while a component of the United Nations human rights system, has been used to concurrently advance Indigenous, human rights and environmental issues. At the national level, Chowdhury (Chap. 14) describes the use of rights-based approaches in Indian courts to address environmental issues. In doing so, Chowdhury reveals the differential treatment of civil liberties (e.g. freedom of expression, individual liberty and equality before the law) on the one hand and social and economic equality on the other. Civil liberties are protected under the Indian Constitution and thus enable citizens to petition the Courts where these rights have been violated. In contrast, while environmental public goods (such as the right to clean air and water are recognised) are of the nature of rights which obligate the state to deliver social and economic equality transgression of such rights are non-justiciable under the Indian Constitution. The existing human rights ground covered by law and the growing exploration of the intersection between environmental and human rights are particularly important in the quest to simultaneously achieve equity and sustainability in the current epoch.

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Further investigation of these issues in the context of the Anthropocene is a significant area for further research.

19.4.3 Developing and Drawing on Existing Areas of Law and Legal Mechanisms to Give Effect to a More Nuanced, Equitable and Sustainable Relationship with Our Planet As discussed in RAP 2, transdisciplinary approaches are essential for facilitating true understanding of the context of the Anthropocene within which existing law must be interpreted and applied. Building on this, this section highlights the ways in which existing areas of law and legal mechanisms can be harnessed and further developed to deliver desirable futures for our planet. Minas (Chap. 7), for example, emphasises the importance of ‘robust and targeted implementation’ of existing instruments while calling for innovative new instruments which address gaps in the current system. This section thus calls for the creative use of existing mechanisms and legal remedies. Drawing on the issues discussed in RAP 1, Berros (Chap. 2) underscores the need for plural spaces of knowledge production and for the embrace of legal pluralism. Legal pluralism provides an important step in ensuring the incorporation of a wide array of world-views. Berros illustrates how this has been achieved in the Latin American context thus demonstrating how Indigenous and ancestral knowledge can be incorporated into contemporary constitutions. Chowdhury (Chap. 14) highlights the imperative the Anthropocene creates for broadening remedies for environmental harm. Similarly, Phelps et al. (Chap. 15) draws attention to the importance of non-monetary remedies such as apologies and investments in cultural and educational activities so as to provide meaningful reparation for those impacted by environmental harm. They also draw attention to the importance of further research to facilitate inclusion of wider understandings of value which incorporates Indigenous and local knowledge especially in damage claims which traditionally have had a narrow focus on economic value. Gussen (Chap. 16) calls for the overhaul of governance organisation where charter cities replace nation states. In doing so he emphasises the need for new constitutions which would enable these charter cities to implement environmental laws. To this end, van der Berg (Chap. 18) highlights the important role of municipal planning law in implementing integrated responses across social, environmental and economic issues. Echoing the arguments of Gussen, van der Berg highlights how urban planning is generally the most decentralized level of governance and thus has a close connection to local communities and issues. Planning law thus provides an underutilized mechanism to respond to the specific local challenges of global environmental change in a spatially appropriate manner. These examples from across the book are but a few illustrations of how existing law can be used in an innovation manner to address the context of the Anthropocene.

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Other areas ripe for further exploration include negligence in the context of climate (e.g. the Urgenda case); disclosure obligations in corporate law; and shifts in property law that incorporate stewardship responsibilities to the land. The key message that emerges from RAP 3 is that we need to use the opportunity of the Anthropocene to sharpen, re-fashion and re-design the tools of law so that they are fit for purpose in our new reality.

19.5 Research and Action Priority 4: Mobilise New Actors and Empower Coordinated Action at Multiple Governance Scales Earth system change is occurring at such a rapid pace that incremental improvements to global environmental governance are no longer adequate (Biermann et al. 2012b). As discussed in Chap. 1, the complexities of the current epoch mean that the global sustainability challenges cannot be addressed by governments and intergovernmental organisations alone (Hajer et al. 2015). What is needed instead is transformative governance built on mutually informative relationships between public and private actors in a global coalition of scientists, regulators and societal stakeholders (Biermann et al. 2012b; Hajer et al. 2015; Bai et al. 2016; Liljleblad, Chap. 13; Chowdhury, Chap. 14). The Anthropocene therefore requires us to muster new agents of change coordinated across multiple governance scales. RAP 4 therefore encourages (1) the mobilisation of stakeholders who have todate been insufficiently included in governance systems. There is a particular focus on Indigenous peoples, cities, corporations, consumers. This Research and Action Priority then discusses (2) the importance of coordinating action across groups at multiple scales. The progress made in RAP 4 will also help advance the incorporation of alternative knowledge systems discussed in RAP 1 while facilitating the integrated approaches advocated for under RAP 2.

19.5.1 Mobilise Broader Coalitions of Actors The involvement of a broad array of stakeholders is important for effective sustainability decision-making particularly in the Anthropocene. This is because it allows more comprehensive understanding of the multiple impacts of global change by compelling deeper consideration of the consequences of anthropogenic activities (Koviˇc Dine, Chap. 8). In the context of protected areas, Tanaka (Chap. 6) draws attention to the importance of incorporating diverse stakeholders beyond protected area boundaries. Such an approach, he argues, will facilitate management which takes into account complex land ownership and overlapping legal systems. Tanaka also highlights the key role that law can play in this endeavour by setting out future

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directions; integrating diffuse policies across agencies and sectors; and incentivising collaboration. Empowering multiple societal actors is important not only for reasons of effectiveness but more importantly for reasons of equity which are achieved through greater representation in democratic decision-making. Environmental harm regularly disproportionally impacts marginalised groups, future generations and natural systems (Phelps et al., Chap. 5). In the context of waste management in India, for example, Kaur (Chap. 17) highlights how people from lower socio-economic groups are often in contact with hazardous waste. Enhanced agency and capacity is therefore important as it has a critical function in countering cycles of injustice (Leach et al. 2018). The importance of incorporating Indigenous peoples and knowledge in decisionmaking for the Anthropocene has been emphasised across this book (e.g. Berros, Chap. 2; Cliquet, Chap. 5; Liljleblad, Chap. 13; Phelps et al. Chap. 15). Liljleblad (Chap. 13) reiterates that the elevation of Indigenous voices and knowledge is fundamental beyond improving conservation. The greater inclusion of Indigenous actors, Liljleblad points out, is key to social justice and democracy. Efforts that embrace Indigenous perspectives are particularly important in the Anthropocene not only because they can inform a more sustainable means of living with nature but also because it goes some way to redress historical injustices. Liljleblad therefore offers the Universal Periodic Review mechanisms as a means to integrate Indigenous voices in broader global discussions about the Anthropocene. Cities are also identified as an important emerging actor in the Anthropocene (Gussen, Chap. 16; van der Berg, Chap. 18). van der Berg points out that while cities only cover 2% of the Earth’s surface their populations consume in excess of 75% of the world’s resources. Gussen therefore calls for a shift towards a world governance system of charter cities. Though only discussed cursorily in this volume, the role of corporations deserves increased attention if we are to move successfully to a desirable future in the Anthropocene (Yamada 2017). Despite the far-reaching and increasing role of corporations as global actors, the corporate sector received limited recognition in the SDGs thus restricting the potential of the SDGs to bring about genuinely transformative socioeconomic transformation (Brewer 2015; Lim et al. 2018). To successfully engage the corporate sphere in action towards sustainability we need to engage the key motivations of the business community. This includes framing sustainability issues and green competition in terms such as ‘first mover advantages’ and ‘reducing global supply chain risks’ (Pattberg 2012; Hajer et al. 2015). This means emphasising a narrative of opportunities for business in the Anthropocene and motivating the development of social-technical innovations (Hajer et al. 2015). On a related note, consumers are also important global actors. Often though, consumers are not adequately informed of the unsustainable and even hazardous consumption practices which they inadvertently support (see for e.g. Kaur, Chap. 17)

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19.5.2 Coordination Across Scales Transformations to desirable and sustainable futures necessitates the reform of current governance systems at all levels of political organisation. This is particularly so as we develop further insights into the complex interdependent functioning of the natural world across local, national, regional and global scales. The Anthropocene also requires us to develop the capacity to anticipate how societies, economies and ecosystems interact across these scales and understanding of how to move these interacting multi-scale systems towards preferred states (Taylor 2013; Bai et al. 2016; Bennett et al. 2016; Zhou, Chap. 3). The importance of understanding cross-scale interactions has been emphasised across this book particularly in relation to the cumulative impacts of local activities (Zhou, Chap. 3; Gussen, Chap. 16; Kaur, Chap.17; van der Berg, Chap. 18) and the importance of decentralised governance (Zhou, Chap. 3; Chowdhury, Chap. 14; Gussen, Chap. 16). To address spatial and ecological complexity, local, national and regional land-use practices need to change to enable the continued function of ecosystems (Sterner et al. 2019). However, uniform application of rules at all scales is likely inappropriate as it fails to take into account the local context. At the same time, the collective result of local rules is not guaranteed to result in improved ecological integrity at the planetary scale (Kim and Bosselmann 2015; Zhou, Chap. 3). There is therefore the need to shape legal frameworks and institutions that take into account human activity across multiple scales. Liljleblad (Chap. 13) highlights the particular mechanisms of Universal Periodic Review as providing a means by which Indigenous peoples at the local level can overcome challenges posed by local and national governments by engaging global audiences and international institutions and elevating local concerns into international agendas. While other chapters allude to the importance of decentralised approaches, Gussen (Chap. 16) takes this a step further by introducing and unpacking the concept of hypotaxis. Hypotaxis is defined as the legal, political, economic and ethical principle that determines the appropriate scale of social organisation by providing ‘as much freedom as possible, and as much state as necessary’. Bearing similarities to the principle to subsidiarity, hypotaxis emphasises placing decision-making processes at the local level and particularly in city-regions. As discussed in the section above, Gussen then advocates for global reorganisation where sovereign charter cities would replace nation states. Remaining within the current framework of global governance, Sterner et al. (2019) alternatively suggest greater use of coordinated ‘two-tier’ policy instruments, e.g. international treaties combined with national carbon pricing arguing that this set-up can play an important role in linking global and national scales in an effective manner. Similarly, the proposed ‘Global Deal for Nature’ could facilitate increased habitat protection across a range of scales while enabling linked national and ecoregion scale conservation strategies and the empowerment of Indigenous peoples to protect their sovereign territories (Cliquet, Chap. 5). Meanwhile, a range of domestic strategies such as the elimination of resource subsidies and the enhanced regulation of

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the primary production sector can be effective even without global level coordination (Sterner et al. 2019). RAP 4 has emphasised the need to think creatively and inclusively about new actors and those that have traditionally been marginalised in sustainability decisionmaking. In doing so, RAP 4 also highlights the need for governance frameworks which appreciate the role and interactions of multiple actors and institutions across a range of political and socio-ecological scales.

19.6 Research and Action Priority 5: Enable Transparent, Accountable and Responsive Governance and Decision-Making In the Anthropocene, not only is better environmental governance needed, so too is quicker decision-making which responds to the uncertainties of the epoch. This is recognised in the SDGs which aims, in Goal 16, to ‘Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels’ (SoIntsev, Chap. 11). There is growing global demand for greater democratic accountability and strengthened rule of law to achieve environmental justice. This coincides with increased access to information and monitoring mechanisms aimed at enhancing accountability (Phelps et al., Chap. 15). Often, however, the contribution that the rule of law can play in addressing sustainability challenges is not explicitly stated. Articulating the specific role of law and the rule of law, beyond broad statements of the need to make headway towards ‘good governance, is key to communicating and enhancing the function of legal and institutional systems in sustainability governance (Phelps et al., Chap. 15). Transparency and accountability are the foundations upon which good governance rests (Jafarzadeh, Chap. 12). The two are intrinsically interconnected with transparency mechanisms enabling citizens and consumers to hold public and private actors accountable. This in turn incentivizes and promotes greater sustainability (Biermann et al. 2012b). RAP 5 therefore focuses on (1) the collaborations mechanisms required to achieve interconnected goals of transparency and accountability and (2) how quicker and more responsive decision-making might be achieved.

19.6.1 Transparency and Accountability RAP 1 highlighted how neoliberal capitalist systems obscure inequities and exacerbate unsustainable practices. RAP 5 thus emphasises the need to enhance transparency and accountability as well as access to justice so as to draw attention to and ultimately address the inequity of distribution of resources across social groups (e.g. class, gender, ethnicity and location) (Leach et al. 2018) and across time.

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Transparency mechanisms set up through legal frameworks play a key role in creating the needed certainty and incentives for collaboration towards global sustainability. At the same time, these mechanisms facilitate accurate data collection on which informed decision-making and the development of best practice depends (Jafarzadeh, Chap. 12). Meanwhile, means of holding perpetrators of environmental harm accountable are not only important for providing redress but also serve a key role in deterring future environmental harm (Phelps et al., Chap. 15). Zhou (Chap. 3) stresses the importance of taking the local context into account when designing accountability mechanisms. Zhou draws attention to the effectiveness of the ‘river chief mechanism’ which has effectively leveraged the Communist Party hierarchy of the Chinese government by connecting environmental outcomes with the assessment of the performance of party officials. While not explored in this book, a key challenge to decision-making for equity and sustainability in the Anthropocene is the context and changing means by which the populace receives information. While the rise of social media could be argued to facilitate access to information on the one hand, very real questions over the veracity of such information and the demonstrated capacity of such platforms to be manipulated create reason for caution. Kinna (Chap. 9) and Liu (Chap. 10) caution against alarmism in the context of water wars and the rise of China respectively. The collection and dissemination of reliable information and data thus remains as important as ever before.

19.6.2 Access to Justice Principle 10 of the Rio Declaration recognises that access to efficient, accountable and democratic institutions is key to achieving sustainable development (see SoIntsev, Chap. 11). Biermann et al. (2012b) therefore emphasise that accountability and transparency can be greatly enhanced not only by access to information and decisionmaking but also to fora for hearing complaints (Biermann et al. 2012b). Similarly, SoIntsev (Chap. 11) argues that the creation of a specialised international environmental court will have a positive influence on international actors by enhancing public participation, transparency and accountability while expanding the means of addressing the novel challenges of the Anthropocene. This is echoed by Zhou (Chap. 3) who calls for greater public participation freedom of information and access to justice at national and local levels. RAP 4 underscored the need to mobilise and empower new actors. These actors need also be supported to access the judicial system. This is particularly so for persons and communities who are disproportionately impacted by the Anthropocene. Such actors should also be enabled to file suits both as individuals and on behalf of the public (Phelps et al., Chap. 15). In the international context, SoIntsev (Chap. 11) stresses that the right to access international environmental justice should not be limited to States and should also extend to international organisation, non-governmental organisations and

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individuals. SoIntsev highlights the gap in international governance whereby there exists no widely accepted international court where actions can be brought against international organisations. Given the growth of non-state actors on the international stage, SoIntsev thus emphasises the need to rectify this issue so as to address the complex interconnected issues of global environmental change. Given the growing influence of multi-national corporations, international mechanisms for holding such actors accountable is of increasing importance in the Anthropocene. Similarly, environmental pollution at the national level is primarily caused by private persons (Chowdhury, Chap. 14). Chowdhury therefore stresses the need for statutory remedies which enable individual citizens to address environmental violations. Chowdhury illustrates that the existence of such remedies on papers is insufficient. Genuine attempts to enhance access to justice need to be accompanied with adequate institutional and administrative support. Chowdhury demonstrates this through the example of the Loss of Ecology (Prevention and Payment of Compensation) Authority (LOEA). The LOEA was a quasi-judicial body set up to administer an Environment Protection Fund to compensate persons impacted by pollution. Lack of support for the LOEA from the Ministry of Environment and Forests meant that if was very difficult for claimants to gain redress. The LOEF also did not have access to adequate tools to assess environmental damage and correspondingly award compensation. The extent of this problem is demonstrated most compellingly by the fact that when the Authority was wound down, 28,000 pending petitions remained (Chowdhury, Chap. 14).

19.6.3 Faster and More Responsive Decision-Making As discussed throughout this chapter and this book, the realities of the Anthropocene require law and governance systems that are equipped to respond to fundamental and often abrupt changes to human societies and the Earth system. Reform is therefore needed to counter the reactive and slow approaches of current legal and governance systems (de Andrade Corrêa and Venâncio, Chap. 4). What is required is the revision of political and governance systems so that decisions can be adopted and changed quickly. At the same time, there is also the need to build in mechanisms that provide the adaptability and responsiveness needed to address the feedbacks that will likely emerge abruptly across social-ecological systems (Bai et al. 2016). Institutional inertia remains, however, a constant challenge at multiple governance scales (Bai et al. 2016). At the local level, van der Berg (Chap. 18) indicates that the success or otherwise of planning law in promoting urban sustainability will depend on whether such laws sufficiently enable local governments to address emerging development challenges in a flexible and comprehensive manner. At the international level, de Andrade Corrêa and Venâncio (Chap. 4) point out that the further development of International Environmental Law needs rules and mechanisms that are proactive and have a clear goal of promoting sustainable behaviours. To this end, Bai et al. (2016) therefore recommend the careful redesign of existing institutions

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at multiple scales. These transformations need, however, to take into account the issues of accountability and democratic legitimacy discussed above to avoid quick but technocratic and top-down decision-making. SoIntsev (Chap. 11) stresses that the timely incorporation of scientific knowledge into existing legal and policy frameworks will be crucial to shaping a Good Anthrpocene. Similarly, Jafarzadeh (Chap. 12) suggests that Anthropocene discourse could provide the impetuous needed to shape the new interaction required to translate science into law and policy that is responsive to national priorities and contexts. To achieve this, however, an enhanced science-policy interface is needed (SoIntsev, Chap. 11; Jafarzadeh, Chap. 12). The discourse spurred by this new epoch, Jafarzadeh argues, could consolidate cooperation across a broad array of disciplines and in particular bridge knowledge systems between scientists and social-scientists. This in turn has the potential to provide the pivotal insights required for effective regulation in the Anthropocene (Jafarzadeh, Chap. 12; Biermann 2016). Alternatively, SoIntsev (Chap. 11) suggests the development of principles, goals and policies that are based primarily on scientific knowledge. Legal and decision-making systems which respond promptly and appropriately to sudden and unprecedented change are key to successfully navigating the unchartered waters of the Anthropocene. RAP 5 therefore draws on the transdisciplinary and systems-based approaches of RAP 2 to emphasise the need to collaborate across disciplines; engage with data and information; and facilitate access to information and judicial fora to enable transparency, legitimacy and efficient, effective and just responses to the challenges of our times.

19.7 Conclusion It is widely acknowledged that a socially, ecologically and economically desirable future for our planet requires fundamental and radical shifts away from current development trajectories (Bai et al. 2016; Bennett et al. 2016; Pereira et al. 2018). Though built on the present, a Good Anthropocene of the future necessitates the capacity to foresee how societies, economies and ecosystems are connected across a range of scales. Even more importantly, it requires greater understanding of how to shift these coupled socio-ecological systems towards a desirable future (Bennet et al. 2016). Transformations to a better future not only require technological progress but also dramatic social change and governance reforms (Bai et al. 2016; Bennett et al. 2016; Pereira et al. 2018). What is needed is a global renaissance of a magnitude which rivals the leap from the Medieval to Industrial eras of European history (Bennett et al. 2016; Pereira et al. 2018). This therefore requires profound and significant changes across the underlying values, assumptions, cultures, worldviews, power relations, social and legal norms and governing institutions that shape human-environment relationships (Fischer et al. 2012; Bennett et al. 2016). At the same time, such futures will consist of components of the present reconfigured to incorporate new actors, ideas and technologies (Bennet et al. 2016).

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Across this book we have explored the role of law in achieving the requisite transformations towards a thriving future planet. In doing so we have not only stressed the need for equity and sustainability to be progressed concurrently but have also examined the shifts needed across legal and governance systems. The sheer magnitude of complex social-ecological challenges facing our planet in the Anthropocene is such that this publication is by no means exhaustive. Gaps inevitably remain. Nevertheless, the five Research and Action Priorities distilled from across the book are, I argue, fundamental starting points for shaping sustainable, equitable and ultimately desirable futures for our planet and all that live here. The 5 interconnected and reinforcing Research and Action Priorities stress that we need to: • interrogate the neoliberal capitalist assumptions and values that represent the current mainstream view of our relationships with the Earth (RAP 1); • explore and embrace a broad range of worldviews and facilitate their incorporation into the new governance called for in the Anthropocene (RAP 1); • incorporate systems thinking into the design and reform of law (RAP 2); • engage deeply and meaningfully in the co-production of understanding across disciplines and knowledge systems (RAP 2); • coordinate and collaborate across legal instruments and institutions to facilitate integrated approaches; • harness existing and emerging principles and areas of law (e.g. human rights; contract; torts, property) and consider their application and utility in the context of the new epoch (RAP 3); • draw on and develop coalitions of actors to shape desired sustainable and equitable futures which emphasise diversity of voices particularly among the previously marginalised (RAP 4); • coordinate across scales and govern in response to context at each scale (RAP 4); • strengthen transparency and accountability mechanisms (RAP 5); • enhance legitimate and democratic decision-making which is responsive to abrupt environmental and social change (RAP 5); • facilitate access to justice and rule of law (RAP 5). In consideration of the above, I conclude with an invitation to the legal discipline to advance innovative and collaborative new thinking. At the same time, the importance of law and legal frameworks in achieving equitable sustainability in the Anthropocene must not be overlooked. A wider call is therefore extended to anyone concerned with desirable futures for the Earth to embrace law and legal scholars due to the indispensible contribution that both make to sustaining human well-being on a hospitable planet. The need for transformative action to respond to the inevitable and unprecedented change occurring around us reverberates across this book. A key takeaway that also emerges is that no book, no discipline, no person and no country can address the momentous task before us alone. In our fight to retain a planet worth living on we must act urgently, astutely and above all cooperatively.

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