Earth System Law: Standing on the Precipice of the Anthropocene

Timothy Cadman, Margot Hurlbert, Andrea C. Simonelli, Timothy Cadman, Margot Hurlbert, Andrea C. Simonelli

• Publisher: Routledge
• Year: 2021
• Print ISBN: 9781032056241
• eBook ISBN: 9781000482492
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

This book systematically explores the emerging legal discipline of Earth System Law (ESL), challenging the closed system of law and marking a new era in law and society scholarship.

Law has historically provided stability, certainty, and predictability in the ordering of social relations (predominantly between humans). However, in recent decades the Earth's relationship in law has changed with increasing recognition of the standing of Mother Earth, inherent rights of the environment (such as flora and fauna, rivers), and now recognition of the multiple relations of the Anthropocene. This book questions the fundamental assumption that 'the law' only applies to humans, and that the earth, as a system, has intrinsic rights and responsibilities. In the last ten years the planet has experienced its hottest period since human evolution, and by the year 2100, unless substantive action is taken, many species will be lost, and planetary conditions will be intolerable for human civilisation as it currently exists. Relationships between humans, the biosphere, and all planetary systems must change. The authors address these challenging topics, setting the groundwork of ESL to ensure sustainable development of the coupled socio-ecological system that the Earth has become.

Earth System Law is an interdisciplinary and transdisciplinary research project, and, as such, this book will be of great interest to researchers and stakeholders from a wide range of disciplines, including political science, anthropology, economics, law, ethics, sociology, and psychology.

1 Introduction

Origins and evolution of Earth system law

Timothy Cadman

DOI: 10.4324/9781003198437-1

Background

This work has been four years in the making. Originally conceived in 2017, its authors first submitted their abstracts in 2018, followed by preliminary essays in 2019, and completed chapters in 2020. It may seem strange to start this book with a catalogue of dates, but there is a reason. The World Meteorological Organization (WMO) declared 2016 to be the hottest ever recorded, taking the world into what it called ‘unchartered territory’ (World Meteorological Organization, 2017). In the same year, and again in 2017, Australia’s Great Barrier Reef suffered two catastrophic bleaching events, followed by a third in 2020; in five years, half of the shallow water corals of the reef were dead and scientists had declared the ecosystem in danger of imminent collapse (Cockburn, 2020; Dietzel et al., 2020; Hughes et al., 2018). Despite an apparent reprieve, due to a La Niña cooling of the ocean’s surface as part of the broader El Niño Southern Oscillation (ENSO) climate pattern, 2020 was also one of the world’s hottest years on record; the previous five years were the warmest in recorded history (World Meteorological Organization, 2020), in a decade with the highest global temperatures ever documented (Blunden and Arndt, 2020). Since the Earth’s climate is a dynamic system, it is affected by the interactions between the atmosphere, the hydrosphere, the cryosphere, the lithosphere and the biosphere (Pörtner et al., 2019). As such, whatever policy decisions are made to combat anthropogenic climate change, good or ill, will take decades to come into effect, due to inertia in the system – physical, not political: that is another discussion altogether (Boston et al., 2011; Hansen et al., 2013). The fate of the planet will be locked in, forcing future generations to make choices about circumstances over which they will have no control, while those who were responsible will be long gone – and where is the justice in that?

That multiple planetary-level interactions might function collectively as a single system has been theorised since ancient times. But Earth system science remained relatively unknown as a discipline until the 1970s, when James Lovelock reworked the age-old stories of Greek mythology into his Gaia hypothesis, subsequently sparking a rethink about global environmental politics, and climate change in particular (Litfin, 2005). Legal scholars also began to examine the idea that nature had rights, and such terms as Earth jurisprudence and wild law started to appear in the literature (Murray, 2014). The term Earth systems law (plural) may be traced to a work published as early as 1995, exploring the relationship between humans, nature and modern society (Bosselmann, 1995). However, the relationship between Earth system science and international environmental law seems to have come much later, in a paper of 2014, arguing that international agreements should reflect the complex adaptive systems of the Earth, if they are to avoid the fragmentation common in environmental policy (Kim and Mackey, 2014). The first occurrence of Earth system law (ESL, singular) appears to be in an editorial of the Review of European Community & International Environmental Law in 2015, commenting on a paper advocating for ecological integrity as a basis for international environmental law, but not in the paper itself (Kim and Bosselmann, 2015; van Asselt, 2015). In 2017, the Earth System Governance Project (ESGP), one of the leading international academic networks exploring the interactions between governance and global environmental change, established the Taskforce on Earth Systems Law ‘to explore novel legal developments in and for the Anthropocene, where the Earth as a whole is now seen to have become a socio-ecological system’ (Earth System Governance Project, n.d.a). By 2019, the first academic paper referring specifically to ESL and the Anthropocene in its title had been published, heralding a new era in legal scholarship (Kotzé and Kim, 2019).

The scholarly underpinnings of this book

The contributors to this volume were selected from an open call for papers, first launched in May 2019 (Earth System Governance Project, 2019). The editors wish to acknowledge the broad sweep of representation from a variety of countries and continents in this volume, as well as the balance of gender and capability, from professors to legal practitioners, and emerging scholars. They also accept the European and Northern predominance of contributors; a sign perhaps of the locus of origin of Earth systems governance as an academic network, and the Taskforce on Earth Systems Law, from which this title sprang (Earth System Governance Project, n.d.b).

While there have been a number of journal articles and academic papers on the topic, Earth System Law: Standing on the Precipice of the Anthropocene is the first book to be published on this emerging legal discipline. It questions the fundamental assumption that the law only applies to humans, and posits that the Earth, as a system, has intrinsic rights, and that humans have intrinsic responsibilities towards it. By 2100, unless substantive action is taken, many species will be lost, and planetary conditions will be intolerable for human civilisation as it currently exists (Conkin, 2007; Tollefson, 2020). In short, humanity is standing on a precipice. Relationships between humans, the biosphere and all planetary systems, must change. This book addresses these challenging topics.

It is far easier to reflect on the fate of the planet and advocate for a new approach to doing law in the context of the contemporary era, than it is to describe ESL, although some early efforts are to be commended (Kotzé, 2020). Consequently, an attempt has been made in this book to seek out the views of a wide range of scholars to help delineate the contours of this emerging body of thought and chart its future directions. As this discipline is still in its developing stages, the book examines which analytical frameworks might be applied to both understanding and applying ESL in diverse national, geo-physical and philosophical contexts. From a normative perspective, it also speculates as to how ESL should be used, and what values it is seeking to promote and protect, notably through the lenses of inequality and sustainability, key issues underlying ESL’s development. Finally, the book considers the extent to which ESL can serve as a transformative concept for law in the Anthropocene, or as it has also been called, Lex Anthropocenae (Kotzé and French, 2018).

However, the analytical, normative and transformative dimensions of ESL themselves engender a series of questions, and these too are interrogated by the contributors to this book (Table 1.1).

Overview of the volume

As intimated above, this book is divided into five Parts. Immediately following this introduction, in Part I, ‘Mapping the contours of Earth system law’, Chapter 2, ‘Dimensions and definitions, signposts and silos in Earth system law’, Andrea C. Simonelli, Margot Hurlbert and Timothy Cadman describe the structural and theoretical components of ESL, exploring definitional terms (Earth systems versus Earth system theory, Anthropocene, etc.) and outline the gaps, tensions and silences identified by the authors within this volume. This is the beginning of the quest to find answers to the questions posed about ESL in Table 1.1.

Part II, ‘The analytical dimensions of Earth system law’, considers, first, what ESL is, and questions how conventional legal discourses translate into ESL. The authors in this Part interrogate the theoretical, methodological and analytical frameworks that inform ESL and explore the theoretical and practical links between the Anthropocene, ESL and Earth system governance. This part is comprised of four chapters.

In Chapter 3, Walter F. Baber in ‘Earth system law in the age of humanity’ makes an argument that new opportunities to protect the environment as well as an analytic for advancing and measuring these opportunities are required. The Anthropocene, the recognition of the change agents that humans have become, entails great responsibility as well as great opportunity. Baber creates an analytic using existing research on legal opportunity structures and Environmental Rights Opportunity Structures (EROS) as configurations of circumstances that are supportive of civil society, interventions into environmental decision making, and participation in either litigation or regulatory and legislative processes. This systematic and comprehensive analytical framework explains and guides those who want to transform EROS structures.

Table 1.1 The analytical, normative and transformative dimensions of ESL and associated questions

Analytical dimensions of ESL
What is understood by ESL?	Does ESL exist? Can it be created from existing principles of law and legal developments? Does ESL go beyond conventional legal theories to address the Anthropocene and how? What role do law and legal institutions play in Earth system governance in the Anthropocene? What are the cross-overs between current law and concepts enshrined in the Anthropocene?
How can the fundamentally static, and anthropocentric nature of law and lawyers be dealt with?	How are conflicts between adaptiveness and the rule of law negotiated, framed and resolved? Which historic rules of law need to be addressed? Which need to remain? Can we stretch existing law or do we need to create new law?
How can the memes of ESL be translated to a wider audience?	• How is ESL in society to be envisioned? What is the socio-legal-Earth relation? What about local (common) law and global law? Or nation-state law, and soft international law?
Which theoretical and methodological frameworks should inform ESL?	Is a jurisprudential analysis of ESL enough, or is a post-structural analysis of the experience of law required, i.e., a body of living law – and what are the narratives or discourses of law in the context of ESL? Can ESL be analysed on the basis of conflict, power, hegemony, and social class, or must these concepts be refined or expanded?
Normative dimensions of ESL
Addressing inequality How can ESL overcome inequalities, pervasive hierarchies among species, geographical regions, countries and across generations?	Will the rule of law really solve everything? What international norms and institutions are parts of ESL? What is the normative view of non-human life? How can this be protected in law, for example, are there retirement rights for cows? Do human rights exist in conflict with non-human life? Is there a need for an interspecies ombudsperson?
Ensuring sustainability How can ESL ensure a sustainable way of exploiting resources, directing investments, and orienting technological development and institutional change?	What is the role of standards in ESL, and should they be voluntary or mandatory? Should there be an international Earth system court? How does jurisprudence apply to sustainability as a legal norm? Could/should soft contested eco-norms become hard?
Transformative dimensions of ESL
What are the transformative pathways, that ESL should develop?To what extent could adaptive legal systems serve as a transformative concept for ESL in the Anthropocene?	How can the transformations under ESL benefit from concepts and experiences stemming from Earth system governance? What are cross-cutting principles? Can they have universal application? Are they in silos, or can they be global? Can rights of eco-centrism evolve? What has changed in eco-constitutionalism? What are the problems and path dependencies of state-centrism? Where is the will to change? Can there be non-state internationalism? Why are existing mechanisms not working?

Source: This table represents the outcomes of a mediated conversation as part of a workshop chaired by Peter Lawrence of the University of Tasmania, during the course of the 2017 Lund Conference on Earth System Governance (ESG).

In Chapter 4, ‘International relations and the analytical foundations of Earth system law’, Mike Angstadt sets the stage for visionary legal approaches, new analytical tools and frameworks of environmental and human social changes, and in so doing, provides a toehold for social science insights that thus far have not widely informed legal analysis. These suggested changes are steeped in in...

Table of contents

• Cover
• Endorsements
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of illustrations
• List of contributors
• Foreword
• Preface
• Acknowledgements
• Acronyms
• 1. Introduction: Origins and evolution of Earth system law
• PART I: Mapping the contours of Earth system law
• PART II: The analytical dimensions of Earth system law
• PART III: The normative dimensions of Earth system law
• PART IV: The transformative dimensions of Earth system law
• PART V: Plotting the course of Earth system law
• Index