By Professors Duncan French and Louis J. Kotzé
The world is facing an ecological crisis; a human-made ecological crisis. President Biden has indicated that we have the 2020s to try to ameliorate the worst excesses of climate change; that ‘[s]cientists tell us that this is the decisive decade – this is the decade we must make decisions that will avoid the worst consequences of the climate crisis’ (Presidential speech, 22 April 2021). Climate change is a critical part of the ecological crisis, and while it may be the most important concern, but it is certainly not the only issue we are confronting. As Sir David Attenborough and Professor Johan Rockström show in the recently released Netflix film, “Breaking Boundaries: The Science of Our Planet”, we face a plethora of challenges, amongst them the collapse of the Earth’s biodiversity. As custodians, humanity has failed to care for the Earth, and we are now counting the cost and at an alarming and accelerated rate. Is it too late to stop ecological destruction? The signs are certainly not good … but there is still some hope!
One of the most potent tools developed in the past few years to measure our fate, as well as what progress towards better global environmental protection would look like, is the planetary boundaries framework. Developed by the Stockholm Resilience Institute in 2009 under the leadership of Prof. Johan Rockström, this framework identifies 9 global boundaries – amongst them climate change, biodiversity, ocean acidification, stratospheric ozone depletion, and land-use change – which individually and cumulatively delimit a safe operating space for humanity to continue to exist on Earth, but only so long as we stay within the boundaries. Once we cross these boundaries- and the evidence suggests we have in relation to biodiversity and biogeochemical flows (phosphorus and nitrogen pollution), the impact of humanity takes on a new level of risk previously unknown. Of course, as with all risk, the exact effect is difficult to predict accurately in advance, but the weight of evidence is such that we know that it will impact us in increasingly deleterious and potentially exponential ways. Climate change, as a singular boundary, is a particularly significant risk as its impact is likely to act as an aggravating multiplier of all other ecological risks that we face.
In our recently released collection, the Research Handbook on Law, Governance and Planetary Boundaries, an eminent group of legal scholars look at the legal implications of the planetary boundaries approach, and asks what can law do to support humanity to stay within the safe operating spaces identified by the boundaries. Of course, we have had 50 years of international environmental law, and with some success; but on the whole the state of the planet has only worsened over the time. Moreover, whilst environmental law has sought to engage with scientific evidence, it has often done so through a filter of politics and economic compromises, as well as North-South diplomacy, that lessens the ecological efficacy of the rules being adopted. Implementation and governance are similarly challenged by the tension between scientific necessity, political will and economic benefits.
The planetary boundaries approach – not perfect either in its design or elaboration – nevertheless challenges lawyers, policy-makers and civil society to look again at the global purposes underpinning multilateral environmental agreements, other environmental rules and the institutions that have been set up to facilitate global environmental governance. The planetary boundary framework offers an opportunity to ask not only whether these go far enough to address the deepening ecological crisis, but also whether actually we have the appropriate rules for the challenges we face? Some of the planetary boundaries remain noticeably weak in terms of legal coverage (mention has already been made of biogeochemical flows), whereas other challenges remain dogged by continued assertions of territorial sovereignty (eg. deforestation and land-use change), or lack of prioritisation, and even insufficient understanding (chemical pollution and the regulation of novel entities).
Though it is an obvious truism that only the right politics will generate the right law, and at present we don’t see enough of the former to have hope that we will see more of the latter, there is nonetheless much we can do within the current paradigm. These include full and effective support of and participation in those treaties that we do have; regular and effective monitoring, reporting and verification of State compliance; sufficient funding and technical assistance to the global South to ensure meaningful global engagement; and improving how our scientific knowledge feeds into the legal and policy sphere (and with much less filtering by divisional politics and economic wrangling).
But will all this, and other improvements within the current paradigm, be enough? The concern must be that we have left it too late, and that the planet is now faced with a future that no previous generation in the planet’s history has had to face before. Ever since the Industrial Revolution went hand-in-hand with the Enlightenment, we have believed ourselves masters of our own destiny. The Covid-19 pandemic has shown how easily we can be thrown off course from our perceived inalienable rise in our own self-improvement from one generation to the next. Of course, that is a myth perpetuated largely in the North at the expense, and as a result, of exploitation of the South. What nature is telling us is that very soon, the entire planet will look very different from that experienced even fifty years ago, with nature as our unempathetic master. Law, as a human tool, needs to lift the heavy burden, before what we think we know about the world is itself historical.
The Research Handbook on Law, Governance and Planetary Boundaries, edited by Duncan French, Pro Vice Chancellor of the College of Social Science and Professor of International Law, University of Lincoln, UK and Louis J. Kotzé, Research Professor, North-West University, South Africa and Senior Professorial Fellow in Earth System Law, University of Lincoln, UK is out now.
Read chapter one free on Elgaronline.
June 17, 2021
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