The Emergence of Global Environmental Governance Law

Global environmental governance (GEG) is a normative institutional regulatory intervention and social construct that aims to influence how people interact with the environment in the global. It entails a pluralistic, dynamic, multilevel (national, regional, international), multi-actor (state and non-state actors) process of change which idealistically aims to optimise environmental benefits and use, while at the same time seeking to equally protect environmental capital for the benefit and use of present and future generations. Law is an important part of and plays a critical role in GEG. Law is the constitution of GEG; law legitimises GEG; law creates GEG actors and allows them to govern; law provides the authority to these actors to govern; law prescribes how to govern and what to govern; and law provides the minimum legal thresholds for what is deemed acceptable or unacceptable societal behaviour vis-à-vis the environment. Law therefore ultimately fulfils a distinct constitutive, legitimizing, prescriptive, proscriptive, instrumentalist, and guiding function in and of GEG. Environmental law could arguably be considered the primary body of rules in GEG. Yet, in tandem with the globalisation (or transnationalisation) of law alongside a continuously disaggregating GEG effort, numerous other types of legal rules are assuming increased importance in the GEG paradigm. These include, for example, investment law, international organisational law, administrative law, trade law and humanitarian law, among others, and a host of reflexive, informal, non-state (yet law-like) rules such as the Equator Principles, at all levels of governance. The hypothesis of this paper is that ‘traditional’ (national, regional and international) environmental law alone cannot continue to fulfil all the functions that law must fulfil in GEG. While environmental law will no doubt remain the predominant body of law in GEG, the emergence of a more coherent body of GEG instead requires an extended view of law in the global. This paper proposes that global environmental governance law (GEGL) is a more suitable phenomenological conception that could cater for the diverse needs of disaggregated GEG. GEGL is an emerging amorphous body of law and it could include any sub-discipline of law to the extent that it is relevant to facilitating GEG or to achieve the objective of GEG. GEGL thus transcends and recasts the traditional disciplinary boundaries within and of law; the traditional geographical delineation of national, regional and international levels with respect to law; and the traditional sources of law into global rhetoric. It also necessitates rethinking the regulatory link between law and the objectives of law in the global environmental regulatory domain. In light of the foregoing, this paper: Explains ‘the global’ and its implications for environmental law and governance; Describes the disaggregated global architecture of GEG in the context of the global; Investigates the role of law in GEG; Investigates the globalisation of (environmental) law and the rise of GEGL; Proposes broad conceptual parameters for GEGL; and Describes what it understands under GEGL

Constitutional International Environmental Law for the Anthropocene?

Review of Comparative and International Environmental La

International Environmental Law’s Lack of Normative Ambition: An Opportunity for the Global Pact and its Gap Report?

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

Neubauer et al versus Germany: Planetary Climate Litigation for the Anthropocene?

The recent decision by the German Constitutional Court in Neubauer et al. versus Germany has been attracting considerable attention around the globe. The Court ordered the German legislature to correct and to significantly tighten up existing climate law provisions, to increase the ambition of these provisions, and to strengthen future mitigation pathways. Several commentators have hailed it as an example of what is possible when the judiciary steps in to fill gaps in global climate governance as a result of governments failing to act or acting inadequately. In this article, I explore the extent to which the Court in Karlsruhe has innovatively managed to embrace a holistic planetary view of climate science, climate change impacts, planetary justice, planetary stewardship, earth system vulnerability, and global climate law, within the context of a human-dominated geological epoch, to guide its reasoning and findings. My proposal is that courts will have to increasingly follow a planetary perspective that is grounded in the Anthropocene context when adjudicating matters related to global disruptors such as climate change. This decision offers a first, and important, example of a promising new paradigm that I term planetary climate litigation

The Right to a Healthy Environment and Law’s Hidden Subjects

In this essay I reflect upon whether and how the recent international recognition of the right to a healthy environment might––or might not––provide greater support for efforts to define and protect the rights of what one could term “law's hidden subjects,” namely future generations and nature. Although there are several examples of rights-based regimes that aim to protect future generations and nature, few would disagree that these hidden subjects require better legal protection, and that thoroughgoing reform of existing human rights law is overdue. I argue that the international recognition of a human right to a healthy environment might contribute less to such reforms than what one would have intuitively expected. One reason for this is because the formulation of the right does not provide anything new in terms of more comprehensive recognition and protection of rights of nature and future generations. Although it is an important symbolic event that signifies broad consensus on the importance of rights-based environmental protection, many domestic and regional legal regimes already protect future generations, while some even offer innovative rights of nature provisions. At best, UN General Assembly Resolution 76/300 merely reinforces the status quo ante

Earth system law: The juridical dimensions of earth system governance

While the focus of earth system governance is on the human-social aspects of Earth system changes, law has played a peripheral part in the earth system governance scientific agenda. Earth system governance perspectives have also not significantly infiltrated the juridical domain. In this paper we seek to initiate a debate on the juridical dimensions of earth system governance. We make out a case in support of developing a new overarching legal phenomenon that, more than environmental law (among others) comprehensively accommodates and encapsulates the juridical aspects of earth system governance, including a new accompanying research agenda. We call this new legal phenomenon 'earth system law'. Earth system law, as we aim to show, could introduce a new era in legal scholarship, while seeking to comprehensively respond to the regulatory challenges presented by a changing Earth system in the Anthropocene

Towards Planetary Nexus Governance in the Anthropocene: An Earth System Law Perspective

Nexus governance recognises that sustainability concerns such as water, energy, and food security are interlinked and provides an alternative to fragmented governance. Although it has been applied mostly in the domestic context, the need for nexus governance is also apparent at a planetary scale, as highlighted by interacting planetary boundaries, global telecoupling, and global tipping cascades. However, international environmental law is unable to facilitate what we call ‘planetary nexus governance’. This is mainly because international environmental law lacks an ecological Grundnorm and because its primary rules of conduct remain fragmented in the absence of effective secondary rules on how primary rules should relate to each other. Recognising this challenge, scholars have recently proposed earth system law as a new framework to rethink, in an integrated way, law in an Anthropocene context. Building on this framework, we suggest that international environmental law should adopt a unifying Grundnorm such as planetary integrity. We also suggest that international institutional law, as a body of secondary rules, has an important role to play in facilitating planetary nexus governance by bringing together fragmented bodies of international law. We briefly discuss ways in which international environmental law could reorientate itself to better facilitate planetary nexus governance

Youth Movements, Intergenerational Justice, and Climate Litigation in the Planetary Context of the Anthropocene

After decades of ineffective state-led global climate governance that has been dominated by mostly short-term Northern political and corporate interests, we are now witnessing an increased recognition of the planetary scale of the climate crisis and its impacts on present and future life on Earth. The Anthropocene is argued to be the new geological epoch and is associated with fast-approaching planetary boundaries and a new understanding of promethean humans as a powerful geological force. The Anthropocene introduces a new context for thinking about the climate crisis and its associated multiple patterns of differentially distributed injustices, including the temporal aspects of justice. At the same time, the climate crisis prompts the need to embark on new strategies to ensure a safe and just operating space for all present and future generations within planetary limits. While traditionally marginalized in national, regional and United Nations political fora, and largely ignored by the high rhetoric of multilateral environmental agreements that have been unable to operationalize intergenerational justice in day-to-day governance, young people are now actively claiming their position as representatives of present and future generations. They do so through protests, but also through more formal avenues to deliberately assert claims for intergenerational justice. One increasingly popular and often successful strategy is climate litigation. In this paper, we explore the shift in understanding and the practicing of intergenerational justice in the deep time context of the Anthropocene, and how young people are becoming more powerful political actors that use climate litigation to ensure intergenerational justice. We briefly reflect on the 2021 decision of the German Constitutional Court in Neubauer et al versus Germany as an example of successful youth-led climate litigation

Putting Africa on the Stand: A Bird’s Eye View of Climate Change Litigation on the Continent

Although climate change litigation is rapidly increasing worldwide, and despite Africa being one of the regions predicted to be most severely affected by climate change, the continent has not yet seen any significant growth in this specialized form of litigation. Only a comparatively small number of court cases have to date been recognized as climate change conflicts in Africa. While briefly reflecting on possible reasons for this surprising trend, the primary objective of this article is to offer a first comprehensive interrogation of the state and future prospects of climate change litigation in Africa with a focus on three cases from South Africa, Uganda and Nigeria. The analysis commences with a characterization of current trends in and forms of climate change litigation that are emerging the world over, including a brief assessment of the types of climate change conflicts that are usually litigated, and the challenges and advantages associated with this specialized form of litigation. The article then offers a discussion of the unique nature of climate change impacts in Africa and assesses how this could shape the type of litigable climate change conflicts on the continent. Drawing on three cases from the countries mentioned above, and mindful of the risk of over-generalizing, the authors highlight and critically reflect on possible emerging climate change litigation trends in African courts, while also comparing them to trends now emerging worldwide