The Anthropocentric Ontology of International Environmental Law and the

Sustainable Development Goals: Towards an Ecocentric Rule of Law in the

Anthropocene

Louis J. Kotzé

Duncan French

Abstract

In this article we argue that the Anthropocene’s deepening socio-ecological crisis

amplifies demands on, and exposes the deficiencies of, our ailing regulatory institutions,
including that of international environmental law (IEL). Many of the perceived failures
of IEL have been attributed to the anthropocentric, as opposed to the ecocentric,
ontology of this body of law. As a result of its anthropocentric orientation and the
resultant deficiencies, IEL is unable to halt the type of human behaviour that is causing
the Anthropocene, while it exacerbates environmental destruction, gender and class
inequalities, growing inter- and intra-species hierarchies, human rights abuses, and
socio-economic and ecological injustices. These are the same types of concerns that the
recently proclaimed Sustainable Development Goals (SDGs) set out to address. The
SDGs are, however, themselves anthropocentric; an unfortunate situation which
reinforces the anthropocentrism of IEL and vice versa. Considering the anthropocentric
genesis of IEL and the broader SDGs framework, this article sets out to argue that the
anthropocentrism inherent in the ontological orientation of IEL and the SDGs risks
exacerbating Anthropocene-like events, and a more ecocentric orientation for both is
urgently required to enable a more ecocentric rule of law to better mediate the human-
environment interface in the Anthropocene. Our point of departure is that respect for
ecological limits is the only way in which humankind, acting as principal global agents of
care, will be able to ensure a sustainable future for human and non-human constituents
of the Earth community. Correspondingly, the rule of law must also come to reflect such
imperatives.


Research Professor of Law, Faculty of Law, North-West University, South Africa. This article is based on
a paper presented at the Annual Rule of Law and Sustainable Development Symposium held in
Stellenbosch, South Africa in 2016.

Professor of International Law, and Head of the Law School, University of Lincoln, United Kingdom.

1
Keywords

Anthropocene; Rule of Law; International Environmental Law; Sustainable

Development Goals; Anthropocentrism; Ecocentrism; World Charter for Nature

1 Introduction

Scientists suggest that we are entering a new human-dominated geological epoch called
the Anthropocene.1 Within the steadily expanding Anthropocene discourse, lawyers are
just starting to explore the normative, ethical, conceptual and practical implications of
the Anthropocene trope for law. In this article we suggest that the Anthropocene’s
deepening socio-ecological crisis will, among other things, starkly amplify demands on,
and expose the deficiencies of, our ailing regulatory institutions, including that of
international environmental law (IEL). The failures and deficiencies of IEL are
explicated by the Anthropocene’s human-induced signatures, which loosely characterise
IEL as being: incompatible with Earth system complexities, spatial and temporal; 2
unresponsive to Earth system changes; inflexible and insufficiently reflexive; and state-
centred, a characteristic which preserves sovereignty by shutting out alternative modes
of ecological care.3 Related to the last point, most notably for present purposes, the
perceived failures of IEL have been attributed to the anthropocentric as opposed to the
ecocentric ontology of this body of law. 4 Collectively these factors legitimise and

1
P. Crutzen and E. Stoermer, ‘The “Anthropocene”’, IGBP Global Change Newsletter 41 (2000) 17 at 17-18.
2
‘Earth system’ and its associated terms ‘Earth system science’ and ‘Earth system governance’ are all
understood to be loosely based on an understanding of the Earth’s systemic properties in the various
stages of their co-evolution, and the interaction between and co-existence of these properties from a
systems perspective. Among the many publications in this respect, see H. Schellnhuber et al, ‘Earth system
analysis for sustainability’, Environment 47(8) (2005) 10. The analytical advantage of such a systems
perspective for environmental law and governance specifically is that the Earth system lens, among
others, allows for a more accurate or nuanced appreciation of the complexities of global environmental
change on multiple spatial and temporal scales, including more appropriate ways to deal with such
changes. F. Biermann, ‘”Earth system governance” as a crosscutting theme of global change research’,
Global Environmental Change 17 (2007) 326.
3
D. Vidas et al, ‘International law for the Anthropocene? Shifting perspectives in regulation of the oceans,
environment and genetic resources’, Anthropocene (2015) 1; L.J. Kotzé, ‘Rethinking global environmental
law and governance in the Anthropocene’, Journal of Energy and Natural Resources Law 32(2) (2014) 121.
4
R. Kim and K. Bosselmann, ‘International environmental law in the Anthropocene: Towards a purposive
system of multilateral environmental agreements’, Transnational Environmental Law 2(2) (2013) 285.

2
reinforce the type of human behaviour that is causing the Anthropocene, while further
exacerbating environmental destruction, gender and class inequalities, growing inter-
and intra-species hierarchies, human rights abuses, and socio-economic and ecological
injustices.

Coincidentally, these are exactly the types of concerns that the recently proclaimed
Sustainable Development Goals (SDGs) set out to address. Like the Millennium
Development Goals (MDGs), which were adopted by the United Nations (UN) General
Assembly in 2000,5 the SDGs serve to act, among others, as a strategic high-level policy
roadmap to help the world achieve ‘the Future we Want’, and these Goals will be
instructive to informing the UN development agenda beyond 2015. 6 We argue that IEL
is a contributory cause of and an inevitable if inchoate solution to the many challenges
that the SDGs seek to address, and that strategic high-level global developmental
instruments such as the SDGs work in tandem with regulatory responses such as IEL in
order to achieve global developmental objectives. It follows then that the SDGs have as
much potential to be a roadmap for the achievement of the objectives of IEL as they are
a roadmap for future development around the globe. Conversely, to the extent that it is a
significant component of the global regulatory body of norms that aims to shape human
behaviour and to enable certain developmental outcomes, IEL will also play a crucial
role in achieving at least some of the outcomes of the SDGs. The SDGs are also
themselves fundamentally anthropocentric, which is unsurprising, as both are products
of the state-based system of law and politics. This then reinforces the anthropocentrism
of IEL, leading to a situation where the core cause of the prevailing and deeply
entrenched ‘growth without limits’ paradigm is further embedded instead of being
halted.

Considering the anthropocentric genesis of IEL and the broader SDGs framework, this
article sets out to argue the following thesis: the anthropocentrism inherent in the
ontological orientation of IEL and the SDGs risks exacerbating Anthropocene-like
5
United Nations General Assembly Res 55/2 of 8 September 2000.
6
The Open Working Group on the SDGs explicitly acknowledges that The Future We Want Declaration
provided the mandate to establish this Group, which had ‘to develop a set of sustainable development
goals for consideration and appropriate action by the General Assembly [and it] provided the basis for
their conceptualization. The Rio outcome gave the mandate that the SDGs should be coherent with and
integrated into the UN development agenda beyond 2015’. See United Nations Department of Economic
and Social Affairs. Date unknown. Open Working Group Proposal for Sustainable Development Goals.
Retrieved 23 June 2017 https://sustainabledevelopment.un.org/focussdgs.html.

3
events, and a more ecocentric orientation for both is urgently required to enable a more
ecocentric rule of law to better mediate the human-environment interface in the
Anthropocene. In order to prove this thesis, the article first sketches in Part Two the
stark dichotomies between anthropocentrism and ecocentrism in general terms, and it
builds a case in support of ecocentrism as the only logical choice to ensure that the post-
2015 UN development agenda remains within global ecological limits in the
Anthropocene. It will argue that these global ecological limits are usefully
conceptualised by the nine planetary boundaries that have been developed by
Rockströ m and his colleagues in 2009. 7 The point of departure is that respect for
ecological limits, and therefore implicitly these planetary boundaries which are touted
as a ‘new approach to global sustainability’,8 is the only way in which humankind, acting
as principal global agents of care, will be able to ensure a sustainable future for human
and non-human constituents of the Earth community. Correspondingly, the rule of law
must also come to reflect such imperatives.

Part Three reflects on the extent to which IEL could be considered anthropocentric,
including some of the reasons for this orientation. It also briefly shows how this
anthropocentric ontological orientation is fuelling the events that are causing the
Anthropocene and that are pushing the Earth and its system towards and across the
planetary boundaries.

The discussion then turns its focus to the SDGs in Part Four and argues that they too are
inherently anthropocentric. This Part explains that the anthropocentric ontology of the
SDGs will be unable to support IEL’s going into the new ecocentric direction that this
body of law needs to follow in order to help humanity stay within the planetary
boundaries in the Anthropocene epoch.

Finally, Part Five proposes ways in which the anthropocentrism of IEL and the SDGs
could be addressed, specifically by offering suggestions alongside which greater
ecocentric Earth system care could be exercised through IEL and the SDGs attained in
the first transitional instance through (for want of a better phrase) enlightened and self-

7
J. Rockströ m et al, ‘Planetary boundaries: Exploring the safe operating space for humanity’, Ecology and
Society 14(2) (2009) 1.
8
Ibid at 1.

4
interested anthropocentrism. These suggestions, we believe, could themselves provide
significant traction towards a global ecocentric rule of law for the environment.

2 Ecocentrism versus anthropocentrism

Prioritising global environmental protection has become more urgent than ever before
in the Anthropocene. In this epoch, human-induced Earth system impacts surpass those
deriving from non-human, ‘natural’ dynamics. 9 In stark contrast to the relatively
harmonious Holocene epoch (still officially viewed as being current), 10 the imagery of
the Anthropocene explicates global socio-ecological disorder at an unprecedented scale,
where humans are changing Earth and its system for the worse. 11

Closely related to the Anthropocene framework, Rockström et al identified nine

planetary boundaries in 2009, which represent the ‘non-negotiable 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’. 12 Humanity has
already crossed three of these boundaries, i.e., climate change, the rate of biodiversity
loss, and changes to the global nitrogen cycle; and is fast approaching the other six
boundaries. This indicates that in the Anthropocene, we are entering an unsafe

9
B. Glaeser, ‘Preface: The German Society for Human Ecology (DHG) and land-ocean interactions in the
coastal zone (LOICZ)’, in M. Glaser et al (eds), Human-Nature Interactions in the Anthropocene: Potentials
of Socio-Ecological Systems Analysis (New York: Routledge, 2012) xv.
10
The International Commission on Stratigraphy has not yet officially declared whether we have entered
the Anthropocene. See International Commission on Stratigraphy. Date unknown. ‘Anthropocene’.
Retrieved 23 June 2017 http://quaternary.stratigraphy.org/majordivisions/anthropocene/.
11
Initially developed as a term in stratigraphy to denote the most recent epoch in Earth’s geological
history, the Anthropocene and its imagery have consequently been expanded as a term of art that
embraces the social sciences. See for a comprehensive discussion, L.J. Kotzé, Global Environmental
Constitutionalism in the Anthropocene (Oxford: Hart, 2016), specifically chapters 1 and 2.
12
Rockströ m et al (n 7) 2. The planetary boundaries include: climate change; ocean acidification;
stratospheric ozone; biogeochemical nitrogen; global freshwater use; land system change; rate of
biodiversity loss; chemical pollution; and atmospheric aerosol loading.

5
‘operating space’ where the continuation of life on Earth – certainly as presently
experienced – is anything but certain.

While terms such as ‘ecological integrity’, ‘ecological limits’ and ‘socio-ecological

security’ have emerged as useful frameworks to conceptualise and understand
anthropogenic impacts on the complex Earth system, and to appreciate the limits of this
system and the extent to which it can sustain human and non-human life, the planetary
boundary theory, acting as it does to emphasise the existence of limits to Earth’s
carrying capacity, provides a potentially powerful concretisation of the ecological limits
within which development (broadly conceived as human existence) must be allowed to
occur. Remaining within these boundaries would indicate that we are respecting the
ecological limits of the Earth system. We are encroaching on ecological limits, integrity
and security where we transgress them. In addition to being able to see the human
impacts on the Earth system in quantifiable terms, the planetary boundaries theory also
allows us to appreciate that Earth is an isolated (but complex) place in the universe and
perhaps the only planet where life occurs; all life is entirely dependent on a ‘small, yet
unique, piece of space debris’.13 Earth, by accident or grand design, sustains life, but only
to a limited extent, whereas the vision of this lonely planet strengthens the realisation
that if we impair its ability to sustain life, there is nothing else and nowhere else to go. It
has already been explicitly recognised by Earth system scientists that visions of future
developmental paradigms, such as the SDGs, must consider that:

… the stable functioning of the Earth system is a prerequisite for thriving societies around the
world. This approach implies that the PB [planetary boundaries] framework, or something like
it, will need to be implemented alongside the achievement of targets aimed at more immediate
human needs, such as provision of clean, affordable, and accessible energy and the adequate
supply of food.14

13
J. Karr, ‘Ecological integrity: An essential ingredient for humans’ long-term success’, in L. Westra, K.
Bosselmann and C. Soskolne (eds), Globalisation and Ecological Integrity in Science and International Law
(Newcastle upon Tyne: Cambridge Scholars, 2011) 8 at 10.
14
W. Steffen et al, ‘Planetary boundaries: Guiding human development on a changing planet’, Science
347(6223) (2015) 736 at 744.

6
In tandem with coming to terms with the false promises that hubris often holds out, 15
such a realisation works powerfully to bring human fragility to the fore, acting as it does
to underscore the duality of the human predicament in the Anthropocene: we are both
the cause of and the solution to the Anthropocene’s global socio-ecological crisis. What
consequently clearly emerges from the Anthropocene and the planetary boundaries
imagery is the issue of responsibility at two levels: human responsibility for causing the
global socio-ecological crisis, and human responsibility for urgently addressing this
crisis. The responsibilities that human beings as cognitive beings incur in this respect
manifest clearly in the social mechanisms we create to determine interaction between
other humans and between humans and non-human living and non-living entities.
Central to these relationships are the socially constructed regulatory institutions we
have designed over hundreds of years to facilitate (co)-existence. Law is one of these; so
are economics, culture and religion. All of these regulatory institutions are undergirded
by a specific ontology, which centres on a moral and ethical orientation. While there are
others, for present purposes we differentiate between anthropocentrism and
ecocentrism.

The human being, or Anthropos, takes centre stage in the Anthropocene, aptly
highlighting the underlying anthropocentric moral-ethical ontology of the regulatory
institutions that people have always devised to enable interaction among themselves
and between living and non-living non-human entities. Brown explains that this
conception of the Anthropos:

… contains an individualistic notion of “the good,” where notions of compassion and empathy as
well as community and connections have largely been stripped away and have been replaced by
a self-interested consumer engaged in choosing under conditions of scarcity among alternative
goods that satisfy personal preferences.16

15
A hubris that has, in the words of Brown, ‘legitimated the enslavement and extirpation of many of the
world’s peoples, decimated natural living and non-living systems (which took billions of years to evolve),
and ultimately enslaved us to a false conception of who we are’. P. Brown, ‘Ethics for economics in the
Anthropocene’, Teilhard Studies 65 (2012) 1 at 8. The impact and danger of this hubris were recognised
as far back as 1972 in the Stockholm Declaration on the Human Environment, which acknowledged that:
Man has constantly to sum up experience and go on discovering, inventing, creating and
advancing. In our time, man's capability to transform his surroundings, if used wisely, can bring
to all peoples the benefits of development and the opportunity to enhance the quality of life.
Wrongly or heedlessly applied, the same power can do incalculable harm to human beings and
the human environment. We see around us growing evidence of man-made harm in many
regions of the earth. (para. 3)
16
Brown (n 15) 9.

7
The primacy of the Anthropos, so clearly explicated by anthropocentrism, describes the
centrality and privileged position of humanity vis-à -vis the rest of the world, and it ‘has
fundamentally informed not only the way modern law constructs, categorises and
orders nature, but also the manner in which law protects nature’17 - primarily, as we will
show below, for the benefit of humans and not for the sake of nature itself. Thus – an
unnecessary clarification in almost all respects – the predominantly exclusive Western
paradigm of anthropocentric law, based as it is on the notions of instrumentalist
rationality and the property-owning man, has become a tool that legally creates human
entitlements to the environment, that justifies and legitimises these entitlements, and
that strengthens them through laying claims to the environment and its benefits to
human development. Gillespie says in this regard that anthropocentrism and its
instrumentalist rationality:

… assumes a mandate to experiment, operate, or to manipulate Earthly Nature as humans see fit
… the organic unity of Earthly Nature was replaced by the notion of the world as a machine with
dimensions susceptible to measurement and control … the inertness of matter, the asserted lack
of sentience and lack of inherent value in all that is not human, absolves humanity of any guilt
regarding the apparent damage that humans may inflict upon individual animals or complete
ecosystems.18

In the context of anthropocentric law ‘[t]he image of nature that emerges … is that of a
lifeless, inert machine that exists to satisfy the needs, desires (and greed) of human
beings’.19 Such imaging also perpetuates a deeply unequal – and structurally divided –
global human societal vision.

Notwithstanding the human inequality, what is most noticeable is that such a resolute
anthropocentric ontology is seen to allow, legitimise and to reinforce the type of
unrestricted anthropocentric behaviour that is pushing the Earth system into the
Anthropocene.20 In the Anthropocene, the anthropocentrism of law is considered to
justify and promote ecological ravaging; aggravate the enclosure of the commons;
justify and increase the dispossession of indigenous peoples and other marginalised
groups; perpetuate corporate neo-colonialism; and intensify the asymmetrically

17
V. De Lucia, ‘Competing narratives and complex genealogies: The ecosystem approach in international
environmental law’, Journal of Environmental Law 27 (2015) 91 at 95.
18
A. Gillespie, International Environmental Law, Policy and Ethics (Oxford: Oxford University Press, 1997)
9.
19
P. Burdon, ‘The earth community and ecological jurisprudence’, Oñati Socio-Legal Series 3(5) (2013)
815 at 818.
20
Kim and Bosselmann (n 4) 285-309.

8
distributed patterns of advantage and disadvantage that prevail in society, while
deepening inter- and intra-species hierarchies. 21 Essentially these hierarchies are
systems of obedience and command, including the ‘domination of the young by the old,
of women by men, of one ethnic group by another, of the wealthy over the poor and of
human beings over nature’.22 All of this occurs in the guise of promoting law’s objectives
of environmental protection and nature conservation.

It is, however, precisely law’s deeply entrenched and highly effective ability to separate,
exclude and to distance marginalised (usually minority) people based on, among other
factors, gender, sexual orientation and race (people often referred to as ‘others’) that is
creating these hierarchies. It is also law’s ability to enable ownership or possession, and
to legitimise proprietary entitlements over non-humans and over certain ‘other’
humans that reinforces its “othering” and hierarchy-inducing qualities. 23 As we will
show below, IEL is no different in this regard than other sub-systems of anthropocentric
law around trade, investment and other regulatory regimes.

Pointing to law’s central concern with the human legal subject and its ability to ‘other’,
Grear believes these: ‘… othering patterns are profoundly persistent … [and] the crux of
the problem …[is] the existence of a particularistic “human subject” as the “centre”
around which its “others” struggle for full legal recognition’. 24 Like women, homosexuals
and non-whites, nature is being ‘othered’ by privileging law that is predominantly
masculine, ‘white’ and Eurocentric, and that distinguishes between subject and object.
With respect to the ‘othering’ tendencies of law and its ability specifically to objectify
and ‘other’ nature, Bosselmann states:

Nature has become the inferior “other”, merely raw material for economic-technological
progress. This mindset has shaped modernity as it matured throughout the 20th century. Not
surprisingly, it manifests itself in modern environmental policy, law and governance, which
reflects a compartmentalized, fragmented and economically-charged idea of the environment. 25

21
A. Grear, ‘Deconstructing Anthropos: A critical legal reflection on “Anthropocentric” law and
Anthropocene “humanity”’, Law and Critique 26 (2015) 225.
22
P. Burdon, ‘Earth jurisprudence and the project of earth democracy’, in M. Maloney and P. Burdon (eds),
Wild Law-in Practice (London: Routledge, 2014) 19 at 20.
23
This is an unsettling realisation that is vividly explicated by human slavery, which was in every way
legal and enabled by law and property-vesting rights until slavery was eventually delegitimised in the
1800s.
24
Grear (n 21) 231.
25
K. Bosselmann, ‘Losing the forest for the trees: Environmental reductionism in the law’, Sustainability 2
(2010) 2424 at 2431.

9
This vision of anthropocentric law means that an ‘othered’ nature remains a peripheral
concern that ranks at the bottom of powerful juridically constructed, reinforced and
legitimised hierarchies; and nature continues to struggle for full recognition against the
pervasive entitled and dominating force of individual liberty and property rights that
continue to elevate some privileged humans of the present generation as law’s central
concern. To be sure, nature and disenfranchised ‘others’ will remain ‘othered’ by law for
as long as ‘the legal anthropos remains stubbornly quasi-disembodied, still possessing a
covertly privileged morphology favouring … the construct of a white, property owning,
acquisitive, broadly Eurocentric masculinity that acts upon a world constructed as a
juridically striated, territorialised extensa’.26

Moreover, this ‘othering’ is not merely the preserve of operational, regulatory and
transactional law. Most formulations of the rule of law as a domestic constitutional
Grundnorm contains within itself the pre-eminent ordering of each self-contained
juridical system; its ethical orientation determining and influencing all lower and
subsequent norms.27 In this regard, anthropocentric law is built upon a deeply
anthropocentric rule of law. The number of constitutional references to a healthy
environment is increasing, and yet the positioning and relative prioritisation of most
provisions indicate a relatively weak role in the overall constitutional structure. 28
Moreover, and notwithstanding such references, little attempt is made to vary the rule
of law itself, which remains – almost through caricature – abstract, legally pure and,

26
Grear (n 21) 236.
27
See, among others, J. Ebbesson, ‘The rule of law in governance of complex socio-ecological changes’,
Global Environmental Change 20 (2010) 414; I. Flores and K. Himma (eds), Law, Liberty and the Rule of
Law (New York: Springer, 2013); D. Magraw, ‘Rule of law and the environment’, Environmental Policy and
Law 44(1/2) (2014) 201.
28
For a recent account of environmental human rights see C. Jeffords and J.C. Gellers, ‘Constitutionalizing
environmental rights: A practical guide’, Journal of Human Rights Practice (2017) 1.

10
above all, deeply anthropocentric. 29 While a country such as Ecuador, 30 which has
constitutionally entrenched the rights of nature in its constitution, provides evidence of
a move away from an anthropocentric rule of constitutional law to a more ecocentric
version of the rule of ecological constitutional law, such developments nevertheless
remain putative and, at an international level, are still few and far between. 31 Ranging
from the jurisprudence of Dicey32 through to the ‘principles of legality’ of Fuller 33 (and
with almost every shade in theoretical debate in between), the mainstream debate on
the rule of law has never strayed into recognising the ecological context of humanity’s
socio-normative existence.

At the same time, however, the Anthropocene is being deployed as a powerful trope that
conveys human responsibility to counter an escalating human-induced and human-
centred reality. Amidst this crisis: ‘[t]he challenge is to place the meta-context of the
whole planet and its ecological correlations at the centre of our ethical thinking, rather
than humanity alone’.34 This is essentially an ethical-moral responsibility that could find
tangible expression through non-anthropocentric, or ecocentric conceptions of law,
among others.35 Ecocentrism, says De Lucia, provides a more radical expression of a re-
29
See, for instance, the establishment of the Bingham Centre for the Rule of Law in London
(https://binghamcentre.biicl.org/about-us), which seeks to develop and operationalise Lord Bingham's
Eight (distinctly anthropocentric) Principles of the Rule of Law: 1. The law must be accessible and so far
as possible, intelligible, clear and predictable; 2. Questions of legal right and liability should ordinarily be
resolved by application of the law and not the exercise of discretion; 3. The laws of the land should apply
equally to all, save to the extent that objective differences justify differentiation; 4. Ministers and public
officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for
which the powers were conferred, without exceeding the limits of such powers and not unreasonably; 5.
The law must afford adequate protection of fundamental human rights; 6. Means must be provided for
resolving without prohibitive cost or inordinate delay, bona fide civil disputes which the parties
themselves are unable to resolve; 7. Adjudicative procedures provided by the state should be fair; 8. The
rule of law requires compliance by the state with its obligations in international law as in national law.
30
The Ecuadorian Constitution of 2008 announces the transition from a juridical anthropocentric
orientation to an ecocentric position. It is the first, and remains the only constitution in the world to
recognise enforceable rights of nature (Pachamama or the Incan mother-goddess). For a comprehensive
discussion see L.J. Kotzé and P. Villavicencio Calzadilla, ‘Somewhere between rhetoric and reality:
Environmental constitutionalism and the rights of nature in Ecuador’, Transnational Environmental Law
(2017) 1.
31
Other examples of legal systems that have granted rights to nature are Bolivia’ s statutory Law of the
Rights of Mother Earth of 2010 and the Framework Law of Mother Earth and Integral Development for
Living Well of 2012; several local laws in some states in the United States; New Zealand’ s 2014 deed of
settlement to grant legal personhood to its Whanganui River; and its recent Te Urewera Act of 2014.
32
A. Dicey, Introduction to the Study of the Law of the Constitution, 8th ed (London: Macmillan, 1915;
reprinted Liberty Fund: Indianapolis, 1982).
33
L. Fuller, The Morality of Law (New Haven: Yale University Press, 1964); L. Fuller, Anatomy of the Law
(New York: Praeger, 1968).
34
Burdon (n 19) 823.
35
Grear (n 21) 227.

11
evaluated, re-envisioned relationship between human beings and nature; one that
recognises, among other matters, material agency and the legal subjectivity of natural
entities, ecological integrity and the inherent value of nature, and the sufficient (as
opposed to the optimal) accommodation of human use and occupancy within ecological
constraints.36 Ecocentric juridical articulations also:

… offer a good theoretical critique of the liberal model of law and legal subjectivity, with all its
exclusions; they offer to include material, embodied agency under the conceptual and legal
rubric of subjectivity; they offer to dissolve the binary subject/object and replace it with a
broader space of plural subjectivities, each with its own peculiar mode of being and of agency,
to which the law ought to afford materially commensurate—rather than abstractly equal—
possibilities.37

An ecocentric approach invites the possibility to recognise and respect the ecological
limits that are expressed by planetary boundaries, by denoting non-humans as law’s co-
referents and co-beneficiaries, alongside humans who, in line with their responsibilities
in the Anthropocene, act as their caretakers in a non-hierarchical setting. Obviously,
from a practical point of view, ecocentric laws cannot and should not prohibit all human
interventions in and impacts on the Earth system entirely. While some laws may
specifically and effectively protect parts of nature in toto (i.e. in their natural state),
other laws will have to allow some human interference to the extent that humans also
need to survive alongside other forms of life. The point is rather that such laws should
recognise the limits of Earth system and put in place measures that allow limited use,
while protecting the regenerative and self-functioning characteristics and integrity of
the Earth system,38 not only for the sake of human survival, but fundamentally also for
the sake of protecting Earth system integrity in its own right.

To the extent that the authorship of such laws is anthropocentric, the desire for
ecocentrism might be seen as paradoxical, especially in the initial phases of transition.
Thus, enlightened and self-interested anthropocentric understanding is arguably a
necessary – but only – first step in formulating radical revisions to humanity’s
relationship with nature; one of deference and humility rather than exclusion,
commercialisation and monetarisation.
36
De Lucia (n 17) 103-106.
37
Ibid at 114-115.
38
Bosselmann (n 25) 2428.

12
3 The anthropocentrism of IEL

Narrowing the focus to IEL specifically, it is clear that the pernicious foundations of
IEL’s anthropocentrism are evident in all three principal phases of IEL’s development,
namely the Westphalian system (1648-1918), the international diplomacy phase (1918-
1945), and the current human rights and international community phase (1945-
present). All of it began with the (mostly) bilateral treaties concluded in the pre-First
World War period between riparian states. Some examples are the Fisheries Convention
between France and Great Britain, 1867; the Agreement between Great Britain and the
United States of America for a Modus Vivendi in Relation to the Fur Seal Fisheries in the
Bering Sea, 1891; and the Convention for the Protection of Birds useful to Agriculture,
1902. These agreements attempted to strike a balance between the competing
utilitarian environmental resource interests of states; ‘their benefit, if any, for the
environment was hardly more than a side effect’. 39 The prevailing imperative of the
freedom of states on the high seas in the Bering Seas Fur Seals Arbitration (1893) was
the high point of this process.40

Moving into the second and crossing over into the third phase, as a response to the
profound human suffering following the Second World War the following were created:
the Charter of the United Nations of 1945 and the three instruments central to the so-
called International Bill of Rights; i.e., the Universal Declaration of Human Rights of
1948; the International Covenant on Economic, Social and Cultural Rights, 1966 and the
International Covenant on Civil and Political Rights, 1966. With the world’s attention
virtually exclusively drawn to addressing post-war human suffering, the predominant
rationale behind these instruments was to address human rights abuses and to advance
social and political rights. It was only towards the late 1950s that treaties began to
emerge with a more deliberate focus on environmental protection, although none of

39
U. Beyerlin and T. Marauhn, International Environmental Law (Oxford: Hart, 2001) 3.
40
Great Britain v. United States (1893) Moore’s International Arbitration 755.

13
these explicitly recognised the importance of ecological limits in any meaningfully
binding way.41

Realising the increased risk that environmental damage could have to human existence,
the world came together in 1972 in Stockholm to reflect on the ‘Human Environment’; a
process that in many ways was the catalyst for the current body of IEL we have today.
The title of this conference succinctly provided the context for the ensuing deliberations
as it placed human beings centre-stage and elevated human entitlements to the
environment. The underlying ethos of this global gathering was that the human
environment belonged exclusively to humans; it existed for, and must therefore be
protected for the utilisation of humans, their health, well-being and prosperity. This set
of precepts was echoed in the foundational provisions in the Stockholm Declaration,
such as: ‘[t]he natural resources of the earth, including the air, water, land, flora and
fauna and especially representative samples of natural ecosystems, must be
safeguarded for the benefit of present and future generations’.42 Further explicating its
deeply embedded masculinist ontology of anthropocentrism, the Stockholm Declaration
on the Human Environment proclaimed at the outset that: ‘[b]oth aspects of man's
environment, the natural and the man-made, are essential to his well-being and to the
enjoyment of basic human rights [and] the right to life itself’. 43 It went on further to
state that ‘[t]he protection and improvement of the human environment is a major issue
which affects the well-being of peoples and economic development throughout the
world’.44 While its provision that ‘[t]he capacity of the earth to produce vital renewable
resources must be maintained and … restored or improved’ 45 is as close as the
Declaration comes to recognising the fragile carrying capacity of the Earth system, none
of its provisions are formulated in ecocentric terms that might guide states towards
staying within planetary boundaries and to achieving the goals of the Declaration in a
way that simultaneously respects ecological integrity.

41
Some examples are the Convention on Fishing and Conservation of Living Resources of the High Seas,
1958; the International Convention for the Prevention of Pollution of the Sea by Oil, 1954; and the
Convention on the High Seas, 1958.
42
Principle 2. Principle 5 states in similar terms that ‘non-renewable resources of the earth must be
employed in such a way as to guard against the danger of their future exhaustion and to ensure that
benefits from such employment are shared by all mankind’.
43
Para 1. Emphasis added.
44
Para 2.
45
Principle 3.

14
Intriguingly, the 1982 World Charter for Nature adopted by the UN General Assembly
(see below) is almost entirely disregarded in the paradigm narrative of sustainable
development and IEL – as an aberration from the developing discourse – and instead
the story focuses on the Rio Declaration on Environment and Development of 1992,
which reaffirmed the Stockholm Declaration’s provisions, but further emphasised in
purely anthropocentric developmental terms that ‘[h]uman beings are at the centre of
concerns for sustainable development’.46 Principle 3 of the Declaration affords people a
‘right to development’ (notably not a duty to conserve), which ‘must be fulfilled so as to
equitably meet developmental and environmental needs of present and future
generations’. The terminology of ‘developmental needs of present and future (human)
generations’ implies an environment subjugated to human needs instead of an
ecologically intact environment where human and non-human needs are recognised.
The Declaration also confirmed that ‘[s]tates have … the sovereign right to exploit their
own resources pursuant to their own environmental and developmental policies’ and
that ‘[t]he right to development must be fulfilled so as to equitably meet developmental
and environmental needs of present and future generations’. 47 Like its predecessor, the
Rio Declaration steered well clear of an ecocentric ethic, and refrained from recognising
the ecological limits of the Earth system. What it did manage to accomplish was to
reinforce a pernicious form of anthropocentric nature ‘conservation’ which evolved
into, and remains until this day, ‘an exercise of self-restraint designed to maximize
human welfare over the long term’. 48 (We conserve, because we need to survive, and
where we do not conserve sufficiently for our own survival, we are clever enough to
develop the technologies to help us survive). The Rio Declaration has also managed to
entrench the veracity of sovereign rights of states in global environmental law and
politics through human-drawn borders that fragment and dislodge the ecological
integrity and interconnectedness of an otherwise integrated Earth system where, from a
systems perspective, the only acceptable ‘borders’ can arguably only ever be those
explicating Earth system limits. These sacrosanct state borders and the state-centric
human interests they are meant to protect within a demarcated area, are clearly
sanctioned and kept alive by states through the (soft and other) laws they agree upon in

46
Principle 1.
47
See principles 2 and 3 respectively.
48
F. Yamin, ‘Ethics, the environment and the changing international order’, International Affairs 71(3)
(1995) 529 at 534.

15
pursuit of their own selfish interests in the environmental resources to which they lay
proprietary claim. To this end, IEL as a cultural construct is used to organise human-
centred social metabolism within the context of the Westphalian state system, and as a
legitimation of the power structures that determine this metabolism and which
constitute the centre of the capital accumulation process. 49

Though states recognised rhetorically in the Johannesburg Declaration on Sustainable

Development of 2002 that ‘humankind is at a crossroads’ and that the global community
of states must ‘make a determined effort to respond positively to the need to produce a
practical and visible plan to bring about poverty eradication and human development’, 50
the substance remained grounded in the status quo ante. This Declaration thus
reaffirmed the notion of sustainable human development, which was also the main
focus of the famous Brundtland Report of 1987, and which defined sustainable
development as ‘development that meets the needs of the present generation without
compromising the ability of future generations to meet their own needs’. 51 Assuming
that ‘generations’ means human generations, as it presumably does in the context of the
Brundtland Report, the anthropocentric focus of this definition can clearly be seen in
the glaring disregard for non-human interests and its overbearing emphasis on the
satisfaction of human needs. Consequently, instead of pursuing an ecocentric agenda,
more aptly captured by the idea of ecological sustainability, these instruments merely
reinforced the prevailing conviction that there is a duty to protect environmental
resources not for the benefit of the resources and their integrity but for the sake of
human development and human survival. Clearly, an anthropocentric conception of
sustainable development has become the most generally endorsed juridical leitmotif of
states and their governments in their political processes and in the many diverse
environmental laws that have been enacted at the international, regional and domestic
levels, with predictably dire consequences. As Richardson states:

Some of our most sophisticated legal mechanisms rest upon fictional and erroneous
assumptions about human behaviour. Concurrently, modern environmental law is increasingly
blinded by ideological palliatives such as “sustainable development” that help us rationalize our
continuing encroachments upon the planet.52

49
J. Jaria i Manzano et al, ‘Measuring environmental injustice: How ecological debt defines a radical
change in the international legal system’, Journal of Political Ecology 23 (2016) 381 at 386-387.
50
Para 7.
51
Chapter 2 para 1. Available at http://www.un-documents.net/our-common-future.pdf.

16
Putting aside for a moment the fact that sustainable development has not in practice
been able to prevent humanity from crossing, or fast encroaching on, the planetary
boundaries, despite its being the centre-piece of IEL for the past 30 years, conceptually
it is also deficient to the extent that it follows a utilitarian approach that is focused on
environmental protection for the sake of social and economic human development. To
this end we agree with Jaria i Manzano et al when they emphasise the urgent need to
address the current unacceptable levels of global ecological debt: ‘[U]nder the paradigm
of sustainable development, current international law has been unable to shape a real
or equitable answer to the global ecological crisis’;53 to which we would add that IEL is
no different, but merely a component of ‘current international law’.

Similarly, Rio +20’s outcome document, The Future we Want, was exclusively focused
on human concerns, recognising that ‘[E]radicating poverty is the greatest global
challenge facing the world today and an indispensable requirement for sustainable
development’.54 Critically important as it is for the world to eradicate poverty in its
efforts to address inter-human hierarchies and injustices, the equally important issue of
intra-species justice and the need to ensure such justice is absent from this key
document. The document also ignores the fact that poverty cannot be eradicated
sustainably and continuously if the integrity of the Earth system is not kept intact. In a
stark affirmation of their support for an anthropocentric ethic, and in relation to the
latter commitment, states instead recognised ‘that people are at the center of
sustainable development’;55 while the future we want clearly excludes non-human
interests, which again reflects on the exclusionary, ‘othering’ tendencies of the most
recent foundational soft law instruments of IEL.

The foregoing soft law declarations of IEL have provided important guidance for the
development and enforcement of binding forms of IEL such as multilateral
environmental agreements (MEAs), which today constitute the bulk of IEL.56 Because
the current set of MEAs derive their own inherent ontology and ethical orientation from
the anthropocentric-oriented soft law declarations above, they similarly do not embrace
52
B. Richardson, ‘A damp squib: Environmental law from a human evolutionary perspective’, Osgoode
Hall Law School Comparative in Law and Political Economy Research Paper Series 7(3) (2011) 1 at 31.
53
Jaria i Manzano (n 49) 382.
54
Para 2.
55
Para 6.
56
See further Beyerlin and Marauhn (n 39) 10-11.

17
ecocentrism in any meaningful way. Within the broader theme of the ‘effectiveness of
international environmental law’ more generally, several authors have exposed in some
detail, among others: the anthropocentrism of MEAs; 57 the contribution of IEL
instruments such as MEAs to fuelling the ever-expanding global social metabolism
inherent to human progress;58 MEAs’ lack of a unifying ecological Grundnorm and
universal ecological rule of law to which states and all international environmental
regulatory regimes and organisations should be legally bound to contribute; 59 and the
absence of higher-order constitutional norms, values and provisions in IEL and global
environmental governance.60 In the interest of space, for present purposes we merely
highlight a few examples of MEAs that specifically focus on nature conservation and
some associated issues, and yet ultimately fail to serve the higher objectives necessary
of them.

The Convention on Biological Diversity, 1992 (CBD) for one, starts out encouragingly
enough with its first few preambular provisions leaning towards an ecocentric
orientation. Parties to the Convention recognise, for example, ‘the intrinsic value of
biological diversity and of the ecological, genetic, social, economic, scientific,
educational, cultural, recreational and aesthetic values of biological diversity and its
components’; together with the ‘importance of biological diversity for evolution and for
maintaining life sustaining systems of the biosphere’. Yet, moving to its obligation-
creating provisions, the CBD then defines ‘biological resources’ to include ‘genetic
resources, organisms or parts thereof, populations, or any other biotic component of
ecosystems with actual or potential use or value for humanity’.61 Biological diversity is
therefore not considered a critical element of the Earth system in its own right, but
rather a resource which is meant for human enjoyment and survival and which is
therefore only recognised as worthy of protection if it has actual or potential use or
value for humanity. Per definition then, those elements of biodiversity that therefore are
not useful to people are not eligible for protection under the CBD. It also casts one of the
central principles of the CBD, namely the ‘sustainable use’ of biodiversity, not in terms

57
Gillespie (n 18) and A. Gillespie, International Environmental Law, Policy and Ethics, 2nd ed (Oxford:
Oxford University Press, 2014).
58
Jaria i Manzano (n 49) 386-387.
59
Kim and Bosselmann (n 4) 285-309.
60
Kotzé (n 11).
61
Article 2. Emphasis added.

18
that respect the ecological integrity of biodiversity itself, but rather in terms of the use
of biodiversity at a rate and in a way that maintain its potential ‘to meet the needs and
aspirations of present and future generations’. 62 One of the pernicious spill-over effects
of this anthropocentrism is clearly evident in the nature conservation approach that has
been adopted by the Intergovernmental Science-Policy Platform on Biodiversity and
Ecosystem Services (IPBES), among others, which ‘assesses the state of biodiversity and
of the ecosystem services it provides to society’. 63 Biodiversity conservation and
ecosystem services are understood by the IPEBS to relate to the interaction between
human societies and the non-human world, including nature’s benefits to people and a
good quality of life.64 In terms of the CBD, states also have the ‘sovereign right to exploit
their own resources’ and a duty to ensure only that activities within their jurisdiction or
control do not cause damage to the environment of other states or of areas beyond the
limits of their national jurisdiction. 65 Terms such as ‘exploitation’ (of biodiversity) that
are legitimised and bolstered by the power of a sovereign right only reinforce the
unbridled anthropocentric claims that humans could lay to nature through their laws.
Moreover, the duties that states incur under the CBD in this respect do not extend to the
urgent present need to protect biodiversity for the sake of maintaining a harmonious
Earth system. Their duties are limited to merely maintaining peaceful inter-state
relations. To this end, the important role that healthy, ecologically intact biodiversity
could play in maintaining peaceful co-existence is also pushed to the periphery of
concern. It is unsurprising that the CBD has failed to reverse biodiversity loss, and that
global assessments such as the planetary boundaries study discussed above indicate an
increasingly fragile ecological state.

Similarly, the Convention on International Trade in Endangered Species of Wild Fauna

and Flora, 1973 (CITES) recognises in its preamble that ‘wild fauna and flora in their
many beautiful and varied forms are an irreplaceable part of the natural systems of the
earth’, but then significantly relegates the importance of fauna and flora conservation to
the human interests of ‘this and the generations to come’. While it is conscious of the

62
Article 2.
63
Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services. Date unknown.
About IPEBS. Retrieved 23 June 2017 http://www.ipbes.net/about-us.
64
U. Pascual et al, ‘Valuing nature’s contributions to people: The IPEBS approach’, Current Opinion in
Environmental Sustainability 26 (2017) 7.
65
Article 3.

19
‘ever-growing value of wild fauna and flora from [people centred] aesthetic, scientific,
cultural, recreational and economic points of view’, it ignores the intrinsic value of fauna
and flora from an Earth system integrity perspective.

A final example suffices: the Convention on Wetlands of International Importance

especially as Waterfowl Habitat, 1971 (RAMSAR), also initially proceeds from a more
ecocentric (although in this instance regrettably also an overbearingly masculinist)
stance by recognising in its preamble ‘the interdependence of Man and his
environment’; and more encouragingly, the ‘fundamental ecological functions of
wetlands as regulators of water regimes and as habitats supporting … flora and fauna’.
Like CITES, it then unfortunately demotes the value and importance of wetlands to a
human-centric ‘resource of great economic, cultural, scientific, and recreational value’,
and it significantly reinforces the utilitarian function of migrating waterfowl as being an
‘international resource’.

While all these declarations and the many binding agreements that have been
developed as a result laudably seek to protect the environment, very few, if any, do so
for the sake of the environment in its own right or for the sake of preserving Earth-
system integrity. They are predominantly utilitarian and aimed at environmental
protection to ensure that sufficient resources are available for human development and
survival. They recognise environmental protection only ‘so far as it is valuable to
humans, not as an inherent necessity of ecological interdependencies’. 66 We therefore
conclude that the bulk of the current body of IEL, while it has managed to a minimal
extent to mitigate some ecological damage inflicted by neoliberal industrialisation and
development, has not succeeded in safeguarding the integrity of the Earth system:
‘[T]he inherent design flaw in these laws is the absence of a fundamental rule
prohibiting harm to the integrity of ecosystems’, 67 as well as the absence of a positive
duty of care that is urgently needed in the Anthropocene.

66
K. Bosselmann, ‘Outlook: The Earth Charter- a model constitution for the world?’, in K. Bosselmann and
R. Engel (eds), The Earth Charter: A Framework for Global Governance (Amsterdam: KIT, 2010) 239 at
245.
67
Bosselmann (n 25) 2425.

20
4 The anthropocentrism of the SDGs

The UN General Assembly adopted the SDGs in September 2015. They are to run from
2016-2030 as the successor to the MDGs, which were adopted in 2000 and which were
to expire at the end of that year. The eight MDGs were headline targets that it was
hoped the international community of States, multilateral agencies and non-
governmental organisations would coalesce around. Perhaps the most prominent were
the targets of reducing extreme poverty by half, reducing child mortality of the under-
fives by two-thirds, and ensuring universal primary education for all. Though they have
not altogether evaded criticism, 68 the MDGs have surpassed the relatively low
expectations many had of them.

The SDGs comprise 17 goals, 169 associated targets and more than 300 indicators of
progress. Clearly their remit is more expansive than that of the MDGs. As the SDG
Outcome Document reflects:

[t]his is an Agenda of unprecedented scope and significance. It is accepted by all countries and is
applicable to all, taking into account different national realities, capacities and levels of
development and respecting national policies and priorities. These are universal goals and targets
which involve the entire world, developed and developing countries alike. 69

Moreover, the SDGs selected range significantly beyond the development priorities of
the past – reducing poverty, mortality, hunger etc – but expressly sought to tackle a
broader panoply of issues, arguably to include much more systematically the underlying
and systemic causes of unsustainable development.

While the SDGs clearly embody the new developmental vision and roadmap of the UN
and its Member States for the following 15 years, it is much more difficult to determine
the normative status of the Goals. As one of the present authors has argued elsewhere,
at least from the perspective of international law, the SDGs – as with the MDGs – remain
conceptually and programmatically indeterminate. 70 Eschewing formal legal
conceptualisation, the SDGs remain outside the framework of normative rules and

68
See, among others, P. Alston, ‘Ships passing in the night: The current state of the human rights and
development debate seen through the lens of the Millennium Development Goals’, Human Rights
Quarterly 27 (2005) 755 at 762-768.
69
UNGA, Transforming Our World: The 2030 Agenda for Sustainable Development (21 October 2015) UN
Doc. A/RES/70/1 at para. 5.

21
international legal processes. Though embedded and finding expression within the
work-plans and strategies of the UN and other global and regional bodies (as well as
non-governmental organisations), the SDGs are not only explicitly political, but are,
more specifically and overtly, non-legal.

Yet, the fact that they are political and non-legal does not mean they are not somehow
connected in a relationship with the binding norms of international (environmental)
law that are situated much higher on the normative hierarchy. The intimately reciprocal
and mutually supportive relationship between the IEL agenda and the global goals
agenda was, for example, evident from the Climate Change Conference of the Parties
Decision, which adopted the 2015 Paris Agreement that closely aligned the new treaty
provisions with the 2030 Agenda for Sustainable Development and, in particular, SDG
13 on climate change.71

More generally, as development goals are ‘useful for pursuing focused and coherent
action on sustainable development’, states saw fit to recognise ‘the importance and
utility of a set of sustainable development goals (SDGs)’ which are, inter alia, consistent
with international law and which must contribute to the full implementation of the
outcomes of sustainable development. 72 While such statements evince the commitment
of states to promote the human developmental agenda of progress, it also indicates the
relative weight that states assign to international (environmental) law instruments to
achieve the objectives of internationally agreed developmental goals. This is an
important recognition at the state and global environmental political level, since it
opens up the possibility of aligning IEL with the development goals and to potentially
ensuring the achievement of some of the SDGs through IEL and vice versa.

Turning to the content of the SDGs, it is fair to say that such strategic high-level
declarations are exclusively designed to facilitate human progress. Notably, in tandem
with the anthropocentric ontology of IEL, the focus in the SDGs is on human
development, progress and the improvement of the human condition. Brown suggests

70
For a comprehensive and critical discussion of the SDGs in the context of international law, see D.
French, ‘The global goals: Formalism foregone, contested legality and “re-imaginings” of
international law’ Ethiopian Yearbook of International Law (2016) 151.
71
Decision 1/CP.21 (to be found at FCCC/CP/2015/10/Add.1 (29 January 2016)).
72
Para 246.

22
that progress today ‘tends to be understood as increased consumption by a massive
human population, [and it] is now in the process of devouring its own possibility’. 73 It is
precisely this type of progress that the MDGs, and now the SDGs, seek to promote. This
much is evident first from the centrality of the traditional concept of ‘sustainable
development’ that the SDGs embrace in their name and that they borrow from the
Brundtland Report. Even during the negotiation process preceding the SDGs, influential
commentators warned about the real and potential pitfalls if the SDGs were to be based
on a ‘weak’ anthropocentric approach to sustainable development (as opposed to a
strong, ecocentric approach),74 which merely sees it as a balancing of social, economic
and environmental interests while ignoring the critical need to respect Earth system
integrity and ecological limits. Griggs et al have accordingly proposed in the run-up to
the finalisation of the SDGs that:

The [SDGs’] definition of sustainable development, as laid out in the 1987 report from the UN
World Commission on Environment and Development (the Brundtland Commission), should
therefore be redefined to “development that meets the needs of the present while safeguarding
Earth’s life-support system, on which the welfare of current and future generations depends”. 75

Regrettably, the SDGs never ventured beyond the axiomatic confines of weak
anthropocentric sustainable development, and in their final iteration merely reinforce
the anthropocentric sustainable human development agenda that has also been pivotal
in the IEL framework for the past 50 years. We have noted our concerns with the
concept of sustainable development above, and it is worrying that the SDGs make no
attempt whatsoever to move towards a form of strong ecological sustainable
development that seeks to respect Earth system integrity.

Second, the anthropocentric ontology of the Goals is evident from the primacy of the
human in, and the human-focused objectives of, virtually all of the SDGs. Goals 1 and 2,
for example, aim to end poverty in all its forms everywhere, to end hunger, achieve food
security and improved nutrition, and promote sustainable agriculture; but do not
recognise that this can occur sustainably only if Earth system limits are respected. Goal
3 is to ensure healthy lives and promote well-being for everyone at all ages, but clearly

73
Brown (n 15) 20.
74
For a critical account of the differences between the (anthropocentric) weak and the (ecocentric)
strong approach to sustainable development, see E. Neumayer, Weak versus Strong Sustainability:
Exploring the Limits of Two Opposing Paradigms (Cheltenham: Edward Elgar, 2003).
75
See further D. Griggs et al, ‘Sustainable development goals for people and planet’, Nature 495 (2013)
305 at 306.

23
excludes non-human life from its remit. Goal 6 aims to ensure the availability and
sustainable management of water and sanitation for all, but says nothing about the need
to protect aquatic systems as an integral part of the Earth system that is also crucial for
the functional integrity of this system. Goals 8 and 9 are geared towards promoting
sustained, inclusive and sustainable economic growth, full and productive employment
and decent work for all, and towards building resilient infrastructure, promoting
inclusive and sustainable industrialisation and fostering innovation, but they are silent
on the extent to which these economic activities will inevitably impact Earth system
integrity. In similar vein, Goal 12 aims to ensure sustainable consumption and
production patterns, but it is thin on the details related to what sustainable
consumption and production actually would entail and how it is to be achieved in a
world with an ever-growing population and dwindling resources.

The same point could be made for Goals 16 and 17, which respectively aim 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; and to
strengthen the means of implementation and revitalise the global partnership for
sustainable development. These are noble goals and would seem to reflect a more
communitarian vision of society than have previous instruments of this kind. Yet, on a
textual reading and collectively considered, none of these goals endeavours to break
away from the prevailing business-as-usual ‘growth-without-limits’ paradigm that is
being sanctioned by sustainable development.

Only Goals 7, 11, and 14 aim to go a little beyond the human focus of most of the SDGs to
the extent that they recognise the need for people to find ‘sustainable’ alternatives to
increase resilience. This does not render them ecocentric in any overt sense; they are
simply more accommodative of the idea that the success of the SDGs’ developmental
agenda and their social objectives is entirely contingent on continued existence of
limited environmental resources. Goal 7, for example, aims to ensure access to
affordable, reliable, sustainable, efficient and renewable energy for all; and Goal 11 to
make cities and human settlements inclusive, safe, resilient and sustainable, and to
reduce the adverse per capita environmental impact of cities. Goal 14 sets out to
conserve and sustainably use the oceans, seas and marine resources for sustainable
development, with a target, to be achieved by 2020, to ‘sustainably manage and protect

24
marine and coastal ecosystems to avoid significant adverse impacts, including by
strengthening their resilience, and take action for their restoration in order to achieve
healthy and productive oceans’.76 But again, the employment of terms such as
‘sustainable use’ and ‘sustainable development’ merely reiterates and reinforces the
human-centred development paradigm that holds sway in the prevailing body of IEL
and global environmental politics.

On the surface, Goal 15 arguably comes closest to recognising the intrinsic worth of
environmental resources, focusing on terrestrial ecosystems, sustainably managing
forests, combatting desertification, halting and reversing land degradation, and halting
biodiversity loss. Nevertheless, what might appear putatively ecocentric initially is
significantly problematic in the setting of targets. Related targets include ‘ensur[ing] the
conservation, restoration and sustainable use of terrestrial and inland freshwater
ecosystems and their services’, ‘promot[ing] the implementation of sustainable
management of all types of forests’, ‘promot[ing] fair and equitable sharing of the
benefits arising from the utilization of genetic resources and promot[ing] appropriate
access to such resources’, and ‘integrat[ing] ecosystem and biodiversity values into
national and local planning, development processes, poverty reduction strategies and
accounts’. These targets are far removed from the more ambitious and more necessary
target of respecting planetary boundaries and Earth system integrity. More specifically,
the SDGs are arguably less ambitious and detailed in many important respects than the
earlier established CBD Aichi Biodiversity Targets, thus indicating that an unfortunate
regression may have taken place.77

Clearly, and notwithstanding the new additions – such as SDG 15 – the principal
beneficiaries of the SDGs are people and, as is the case with IEL, the emphasis is
predominantly on resource utilisation for human benefit. According to this reading, the
SDGs mirror the anthropocentric narrative and human-centred objectives that

76
SDG 14, Target 14.2.
77
For instance, whereas Aichi Target 11 says: ‘[B]y 2020, at least 17 per cent of terrestrial and inland
water, and 10 per cent 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 landscapes and seascapes’; SDG 15.1 says: ‘[B]y
2020, ensure the conservation, restoration and sustainable use of terrestrial and inland freshwater
ecosystems and their services, in particular forests, wetlands, mountains and drylands, in line with
obligations under international agreements’.

25
permeated the MDGs.78 Regrettably we must conclude that the anthropocentric
ontology of the SDGs remains problematic insofar as it does not provide any direction as
to how to stay within the safe operating space of the planetary boundaries.

It would be difficult for the purpose of the present article to say in any detail what
exactly an ecocentric version of the SDGs should look like; and in any event, it is unlikely
that the SDGs will now be reformulated and re-adopted before they expire in 2030. But
if one were to argue in broad terms, it would be necessary for the world when
implementing the SDGs to fully embrace the critical caveat that the human development
project is feasible only if ecological limits and Earth system integrity are respected. All
state and non-state actors, through the processes of global governance and the
instruments that make governance possible, including IEL, must recognise that the
Goals cannot permit and facilitate development that forces the world into an unsafe
operating space. The key challenge would thus be to achieve the SDGs and their specific
respective targets, but in a way that would keep humanity from crossing the planetary
boundaries. In the final part of the analysis below, we offer some tentative suggestions
on the direction that such an approach could take.

5 Towards an ecocentric rule of law?

It is important at the outset to clarify that a full-scale transition from anthropocentrism

to ecocentrism, in both IEL and the SDGs, and the way they are used to mediate the
human-environment interface in the Anthropocene, would be fraught with several,
seemingly insurmountable challenges. Some of these include the problem of global
consensus building (as the recent global climate negotiations vividly illustrated); the
lack of political will to address global socio-ecological decay (most recently exemplified
by the United States’ withdrawal from the Paris Climate Agreement); and concerns

78
Goals 1-8 of the MDGs included to: eradicate extreme poverty and hunger; achieve universal primary
education; promote gender equality and empower woman; reduce child mortality; improve maternal
health; combat HIV/Aids, malaria and other diseases; ensure environmental sustainability; and develop a
global partnership for development.

26
about global justice, which are clearly evident in the ever-deepening North-South
divide.

Despite or because of these challenges, the need for the world’s regulatory institutions
to transition into more ecocentric manifestations becomes all the more pronounced. In
a 1995 article reflecting on the changing international order, Yamin concluded:

… it is becoming clear that ecocentric responses … demand a fundamental reappraisal of the

place of non-humans in ethical discourse, a reconsideration of the relationship between
humans and nature, and ultimately a review of the appropriate political, legal and institutional
arrangements at all levels of national and international society. While the speed of any resulting
changes is likely to be incremental, the magnitude of their implications for our notions of
society and the international order could be revolutionary. 79

We have argued in the foregoing analysis for an urgent and fundamental reappraisal of
IEL and the associated global developmental paradigms (exemplified in this instance by
the SDGs), which function alongside IEL and which collectively contribute to
determining the relationship between humans and nature. What would be required is
an alternative frame of reference that could be used as a point of departure to facilitate
an ecocentric orientation within which it would be possible to address human concerns
while simultaneously respecting ecological limits and ensuring Earth system integrity.
To this end, while we accept that neither IEL nor the SDGs will be changed overnight to
more fully embrace an ecocentric ontology, we believe there already exist potentially
influential normative markers or frameworks that advocate for a global ecological rule
of law and that could incrementally move us along such an ecocentric path. The essence
of what these normative markers propose is something the SDGs edge towards but
ultimately never reach. SDG 16 encourages states to ‘promote the rule of law at the
national and international levels’, while in its preamble it talks of ‘reaffirm[ing] that
planet Earth and its ecosystems are our common home and that “Mother Earth” is a
common expression in a number of countries and regions’. We argue that it is timely –
and indeed possibly too late – to combine these ideas to ensure a more coherent
ecocentric rule of law, premised on planetary boundaries and an ecological
understanding of human development and its limitations.

A potentially influential point of departure relating to the rule of law in environmental

protection is the United Nations Environment Programme’s (UNEP) Governing Council

79
Yamin (n 48) 535.

27
Decision 27/9 (2015): Advancing Justice, Governance and Law for Environmental
Sustainability.80 While the decision is neither binding on states nor does it elaborate a
comprehensive ecological rule of law, it does identify some general characteristics of a
legal system that aspires to the rule of law and, through it, enhanced environmental
protection - themes that the international community could with the necessary political
will take forward. In its decision, the UNEP Governing Council identified certain key
features of the environmental rule of law - a term which the Decision itself uses. First,
the rule of law requires the effective addressing of environmental crime and other
environmental violations. This must begin with the adoption, implementation and
enforcement of environmental law, including by the judiciary. Secondly, the
environmental rule of law requires ‘transparency, access to information, accountability
and the efficient use of public finances while protecting the environment for future
generations’. The Decision goes on to add: ‘justice, including participatory decision-
making, access to information and judicial and administrative proceedings as well as the
protection of vulnerable groups from disproportionate adverse environmental impacts,
should be seen as an intrinsic element of environmental sustainability’. Third, the
environmental rule of law requires ‘measures to increase the effectiveness of
administrative, civil and criminal enforcement mechanisms, institutions and laws in the
field of environment as well as applicable education and training’. Thus, such a view of
the emerging environmental rule of law seeks to reflect a more comprehensive and
institutionalised approach than the traditional focus on the lex lata of environmental
norms, and is certainly broader than the anthropocentric rule of law.

Of course, to be meaningful the environmental rule of law must also be particularised to

national circumstances and cultures, whilst simultaneously ensuring an ecological core.
UNEP continues to work on refining the proposition of an environmental rule of law,
and yet ultimately it will be for states themselves to embed it within their national
systems. The European Union, in particular, had the opportunity to identify such a
synthesised approach in its 2000 Charter of Fundamental Rights, but again there is the
classic separation between the rule of law as classically understood (as mentioned in

80
UNEP. 2015. Governing Council Decision 27/9: Advancing Justice, Governance and Law for Environmental
Sustainability. Retrieved 23 June 2017 https://www.informea.org/en/decision/advancing-justice-
governance-and-law-environmental-sustainability.

28
the preamble),81 and environmental ambition.82 What may be positive, however, is the
wording of article 37 and its emphasis on mainstreaming environmental concerns into
law and policy: ‘[A] high level of environmental protection and the improvement of the
quality of the environment must be integrated into the policies of the Union and
ensured in accordance with the principle of sustainable development’. Though this
would seem to cut against the elaboration of an overt ecological rule of law as a stand-
alone principle, it might be a mechanism to bring together, in the future, in an
incremental fashion, the juridical and the environmental understandings of the rule of
law. It would not be an artificial grafting of the latter onto the former, but a more
positive (and deliberate) process of synthesis and integration.

If this could be a potential approach to more fully synthesising environmental concerns

with the rule of law paradigm, how might it be possible to ensure that the
environmental rule of law, particularly as it manifests in IEL and the SDGs,
fundamentally depends on an ecocentric ontology? Mention has already been made of
the World Charter for Nature, which was adopted with a majority vote (111 votes,
with the United States casting the only dissenting vote) by the UN General Assembly in
1982.83 While the Charter is not binding, 84 the overwhelming endorsement it received
from governments all over the world can arguably not be relegated to a mere symbolic
act; at least not at the time when it was adopted. Governments, after all, were willing to
support, at the highest possible political level globally, the provisions of the Charter.
Despite this support, the Charter has so far not been successful in engendering a more
ecocentric approach to IEL and development paradigms such as the SDGs, with soft law
instruments such as the Rio Declaration and their anthropocentric orientations instead
serving as the principal roadmap for the development of IEL and the SDGs, as we have
shown above. One could speculate about the reasons why the Charter has not gained the

81
The Charter’s Preamble states: ‘[C]onscious of its spiritual and moral heritage, the Union is founded on
the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the
principles of democracy and the rule of law’.
82
Article 37 of the Charter.
83
United Nations General Assembly A/RES/37/7 adopted at the 48 th Plenary Meeting on 28 October
1982.
84
Wood notes that while resolutions adopted by the General Assembly of the UN have political and moral
force they have no legally binding effect and that ‘[A] careful reading of the text of the World Charter for
Nature affirms that it was intended to exert political and moral, but not legal, force on member states’. H.
Wood, ‘The United Nations World Charter for Nature: The developing nations' initiative to establish
protections for the environment’, Ecology Law Quarterly 12(4) (1985) 977 at 982.

29
traction it initially promised. Obviously it would have been more influential had it been
binding. But then again, none of the soft law instruments that shaped IEL are binding,
yet their anthropocentric approach to global environmental protection has managed to
prevail. One possible explanation is that states deliberately shied away from the
Charter’s ecocentric approach because they viewed it as being deleterious to neoliberal
economic development and growth, which they have far more successfully managed to
achieve through the anthropocentric provisions of other IEL instruments and their
associated constructs such as sustainable development.

The World Charter for Nature is premised on the idea that human development is
possible only if ecological limits are respected, with the notion of safeguarding
ecological integrity at the core of virtually all of the provisions of the Charter. In the
preamble of the Charter the UN General Assembly acknowledges that benefits from
nature depend ‘on the maintenance of natural processes and on the diversity of life
forms’, as well as ‘the crucial importance attached by the international community to
the promotion and development of co-operation aimed at protecting and safeguarding
the balance and quality of nature’. The permanent sovereign rights of states are
acknowledged, but the preamble emphasises that states must ‘conduct their activities in
recognition of the supreme importance of protecting natural systems, maintaining the
balance and quality of nature and conserving natural resources, in the interests of
present and future generations’.85 While not explicitly clear from this wording,
terminology such as ‘supreme importance’ arguably suggests that permanent
sovereignty over natural resources (a notion which has been deeply engrained in the
international legal and political order by IEL, as we have shown) should be a secondary
concern where there is a need to ensure ecological balance. The General Assembly
further recognises that ‘[M]ankind is a part of nature and life depends on the
uninterrupted functioning of natural systems’; and that ‘[C]ivilization is rooted in
nature, which has shaped human culture’; and it affirms that ‘[E]very form of life is
unique, warranting respect regardless of its worth to man, and, to accord other
organisms such recognition, man must be guided by a moral code of action’. Such a
moral code of action, when considering the bulk of the Charter’s provisions, can
arguably only be one that is premised on ecocentrism. Acknowledging the pervasive

85
Emphasis added.

30
destructive consequences of the prevailing economic order, the General Assembly
believes that ‘[T]he degradation of natural systems owing to excessive consumption and
misuse of natural resources, as well as the failure to establish an appropriate economic
order among peoples and among States, leads to the breakdown of the economic, social
and political framework of civilization’. This is an implicit recognition of the significant
role an ecologically intact Earth system plays in maintaining peace, stability and social
order, as well as a reaffirmation of the need to keep this system intact and functioning
optimally.

In addition to its preambular provisions, the Charter contains several general principles.
These include, among others: ‘Nature shall be respected and its essential processes shall
not be impaired’;86 ‘[T]he genetic viability on the earth shall not be compromised; the
population levels of all life forms, wild and domesticated, must be at least sufficient for
their survival’;87 and ‘[E]cosystems and organisms, as well as the land, marine and
atmospheric resources that are utilized by man, shall be managed to achieve and
maintain optimum sustainable productivity, but not in such a way as to endanger the
integrity of those other ecosystems or species with which they coexist’. 88 These
principles respectively embrace the notions of respect and responsibility for nature, the
need to observe Earth system limits, and the need to protect the integrity of the Earth
system.

The ‘Functions’ section of the Charter provides for controls on and limitation of
economic development.89 It states, for instance: ‘[I]n the decision-making process it
shall be recognized that man's needs can be met only by ensuring the proper
functioning of natural systems’;90 ‘[I]n formulating long-term plans for economic
development, population growth and the improvement of standards of living, due
account shall be taken of the long-term capacity of natural systems to ensure the
subsistence and settlement of the populations concerned’; 91 and ‘[L]iving resources
shall not be utilized in excess of their natural capacity for regeneration’. 92 As is the case
86
Article 1.
87
Article 2.
88
Article 4.
89
Wood (n 84) 980.
90
Article 6.
91
Article 8.
92
Article 10(a).

31
with the principles of the Charter, these provisions collectively aim to allow for human
development, but with due recognition that such development can occur only within
Earth system limits.

In its final part, on ‘Implementation’, the Charter directs states to implement several
types of activities to achieve its objectives. Of particular importance for present
purposes is article 14, which provides that ‘[T]he principles set forth in the present
Charter shall be reflected in the law and practice of each State, as well as at the
international level’. Article 21 broadens this obligation to apply to non-state entities as
well, and implores ‘public authorities, international organizations, individuals, groups
and corporations’ to ‘[I]mplement the applicable international legal provisions for the
conservation of nature and the protection of the environment’. These provisions
acknowledge the important role that law generally, and IEL particularly, will play in
realising the objectives of the Charter. In addition to acknowledging the importance of
the role and rule of law in achieving its objectives, the Charter also recognises that these
laws must themselves be geared towards an ecocentric orientation that respects Earth
system limits and safeguards the integrity of the Earth system. Collectively viewed, this
is arguably the clearest articulation of an ecological rule of law that currently exists in
any United Nations instrument. It is our belief that, while not sufficient, the World
Charter for Nature is a necessary element in intergovernmental and national action in
the light of the challenges of the Anthropocene, and the Charter needs to be re-imbued
with political will and re-examined with new significance from a legal point of view.

6 Conclusion

In sum, we would argue that given the socio-ecological crisis of the Anthropocene and
the widespread decay of Earth system integrity, states must urgently reconsider the
World Charter for Nature as a plausible ecocentric framework to counter the growth-
without-limits developmental agenda espoused by the SDGs and the anthropocentric
body of IEL that feeds into this agenda. This could be done either through a

32
reaffirmation of the Charter by states or through the development of a similar binding
instrument at the UN level, which instrument must seek to provide a broad but
mandatory framework for the urgent implementation of the ecological rule of law.
While this would no doubt take time and considerable effort to effect, the almost
universal adoption of the Charter in 1982 is testimony to the fact that states are capable
of initiating appropriate global action when they perceive a crisis to be imminent. What
is urgently being sought is altered praxis governed under the rubric of a new guiding
precept possibly encapsulated by the ecological rule of law.

33