Presentation at IUCN AEL Colloquium
It was a great honour and pleasure to present my current research at the 20th IUCN Academy of Environmental Law Colloquium. In this blog post I give you a quick summary of my presentation.
Environmental law should have the goal to avoid that we lose our Earth. To achieve this, my point is that we must make International Environmental Law (IEL) more effective by giving it a new goal that all international and national actors are working towards.
Here you can see the «Earth System trajectories». Humans have always lived in the very stable Holocene epoch. Since the turn of the century, however, more and more scientists argue that we have entered a new geological epoch. This new epoch is called the Anthropocene because mankind now is the major environmental force and threatens the planetary stability that we are so used to.
As you can see in the figure, earth has already left the relative warmth of the Holocene to its present position in the hotter Anthropocene, where we find ourselves now at a crossroads with two divergent pathways of the Earth system:
On our current trajectory, the Earth system is on a «Hothouse Earth» pathway driven by human emissions of greenhouse gases and biosphere degradation towards the planetary threshold at around 2 °C. Beyond this threshold the Earth system would follow an irreversible pathway outside of human influence or control.
The other pathway leads to a «Stabilized Earth», warmer and different from anything our species has ever known, but certainly more manageable than a Hothouse Earth. Here, humanity must play an active role as planetary steward by managing on an ongoing basis its relationship with the rest of the Earth system.
So, the science is clear: If the planetary threshold is crossed toward the «Hothouse Earth» pathway, this would pose severe risks for health, economics, political stability and, ultimately, the habitability of the planet for humans. As a consequence, humanity’s common goal needs to be to move the Earth system onto the «Stabilized Earth» pathway.
I argue that, to remain relevant in the future, any IEL must therefore ensure that humanity steers towards this path. In order to achieve this monumental task, we must reform and reorientate IEL towards this overarching objective, so that all relevant actors work together in a new joint enterprise.
This idea of an overarching goal for IEL is not a new one. Kim and Bosselmann proposed already in 2013 the introduction of a single, legally binding, and superior «grundnorm» that gives all international regimes and organizations a shared purpose to which their specific objectives must contribute.
In my opinion, there are two possibilities: either we could introduce and implement this new common goal with a new legal instrument, or we could design the governance structure of IEL differently to reorientate it towards this new goal.
The problem is, however: how can these two different possibilities be compared in terms of their effectiveness to reorientate IEL towards the new joint enterprise? We need some criteria to compare the two approaches.
Eventually, I came across the interactional theory of international law of Jutta Brunnée and Stephen Tup. In my opinion, their theory explains very convincingly how IL works and can influence the behaviour of states and other actors.
According to their theory, obligation is the added value of law compared to other social norms. However, neither the form nor hierarchy of norms can produce obligation in and of themselves. Rather, law is a continuing process consisting of three interrelated elements that generate legitimacy and fidelity to law (see slide above). I decided to use these elements as criteria to compare the behavioural effectiveness of the two possibilities of how we could introduce the new goal of moving and keeping the Earth system on the «Stabilized Earth» pathway.
Firstly, the approach needs to be able to build up a shared understanding that we want to move and keep the Earth system on the «Stabilized Earth» pathway. With the help of natural sciences, the approach also should build up a shared understanding of how we want to accomplish this goal.
Secondly, the approach needs to meet Fuller’s eight criteria of legality to inspire «fidelity» and distinguish themselves from other types of social norms.
Thirdly, for a reform proposal to have a lasting influence, it must ensure that shared understandings and law that fulfil the criteria of legality are reinforced through a continuing practice of legality. This means, that states and other actors must be actively participating in the continuing process of creating and maintaining law.
Moreover, shared understandings and a practice of legality need to be extended into the domestic sphere, because if international norms remain contested at the domestic level, the result may be non-compliance or even a shift in the norm itself.
My doctoral thesis is work in progress and I am always happy and grateful about any feedback and input to my research.
